1 --- Upon commencing at 9:00 a.m.
2
3 THE REGISTRAR: This Public Inquiry is
4 now in session, the Honourable Mr. Justice Linden
5 presiding. Please be seated.
6 COMMISSIONER SIDNEY LINDEN: Good
7 morning. Good morning, Mr. Klippenstein.
8 MR. MURRAY KLIPPENSTEIN: Good morning,
9 Commissioner.
10
11 CHRISTOPHER DOUGLAS HODGSON, resumed
12
13 MR. MURRAY KLIPPENSTEIN: Good
14 morning, Mr. Hodgson.
15 THE WITNESS: Good morning.
16
17 CONTINUED CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN:
18 Q: Yesterday when we broke, I was asking
19 you about some letters that were exchanged between
20 yourself and your Federal counterpart or -- or the
21 Minister of Indian Affairs, which are included in the
22 Commission counsel document brief.
23 And I wonder if you could turn to Tab 73
24 of that and just look at the letter of September 9, 1996
25 which is Exhibit P-1014. And I've gone through with you

9

1 the second paragraph of that letter which begins "I am
2 concerned."
3 Could you see that?
4 A: Yes.
5 Q: And it says:
6 "I am concerned that your response did
7 not address a key issue which Ontario
8 believes is fundamental to the present
9 illegal occupation of the Park. That
10 issue revolves around any grievance the
11 First Nation may have about the
12 original surrender of the lands and the
13 subsequent creation of the Park."
14 And then we saw yesterday how you'd
15 received a response somewhat later which is at Tab 74
16 which is the letter of November 4th, 1996 from the
17 Federal Minister of Indian Affairs, Ron Irwin. And
18 that's Inquiry Document 1004305.
19 MS. SUSAN VELLA: And it's Exhibit 1015.
20 MR. MURRAY KLIPPENSTEIN: Exhibit 1015.
21 Thank you, Ms. Vella.
22
23 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
24 Q: And the letter, or response you got
25 from Federal Minister Irwin discusses the -- the

10

1 fundamental issue you'd raised. But I don't see in that
2 letter any discussion of the Federal -- excuse me -- any
3 discussion of documentation or research that the Federal
4 Government has done or anything they found.
5 Now, you mentioned yesterday that one
6 thing that concerned you would be the possibility of
7 something coming out of their files that would happen
8 similar to the documents about the burial grounds that
9 came out in September around the 12th of 1995.
10 And was -- that was the -- the sort of
11 concern you were partly worried about; is that fair?
12 A: That's correct.
13 Q: And what I would like to do is just
14 see -- well, first of all, is it fair to say that one or
15 more of the reasons that you were writing these letters
16 in part was to get a better understanding or forewarning
17 of what the evidence might be about the grievance that
18 might exist about the creation of the Park in the
19 original surrender.
20 You were -- you were trying to understand
21 if there -- if there was more to it; is that fair?
22 A: That's not my recollection.
23 Q: All right. What were you -- were you
24 writing to see whether they had any documents that you
25 should know about?

11

1 A: That's correct.
2 Q: Yeah. And you didn't get anything
3 from the Federal Government by way of documentation about
4 the surrender in response to your letter. You got just
5 this letter from the Federal Minister of November 4th,
6 '96.
7 Is that fair?
8 A: As far as I'm aware.
9 Q: Yeah.
10 A: It's the only one that's addressed to
11 me that I can recall --
12 Q: Okay.
13 A: -- or have seen.
14 Q: Okay. And I'd like to ask you to
15 turn to the document brief that we put before you which
16 is the small one. I believe it's the dark one. Yeah.
17 If you would turn please to Tab 31 of that
18 document brief.
19 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
20 Lauwers...?
21 OBJ MR. PETER LAUWERS: Thank you, Mr.
22 Commissioner. My Friend has put before the Witness a
23 document that is dated 1929.
24 He's going down the same line that you
25 cautioned him about yesterday and I would like to renew

12

1 my objection and elaborate on it, if I may.
2 COMMISSIONER SIDNEY LINDEN: Hmm hmm.
3 MR. PETER LAUWERS: I've been reflecting
4 on the issue overnight and how long it will take to go
5 through this exercise.
6 First I want to suggest to -- to you, Mr.
7 Commissioner, that these are essentially legal questions
8 being put to a non-lawyer.
9 COMMISSIONER SIDNEY LINDEN: He -- he --
10 MR. PETER LAUWERS: The implications of
11 these letters --
12 COMMISSIONER SIDNEY LINDEN: Just before,
13 Mr. Lauwers, could I suggest that you hold your argument
14 for a minute? I'd like to hear the question first. I
15 realize that you may be right on topic and you may be
16 back on your feet in a minute.
17 MR. PETER LAUWERS: I'm happy to wait
18 for the first question.
19 COMMISSIONER SIDNEY LINDEN: I think we
20 should hear the question first.
21 MR. PETER LAUWERS: All right.
22
23 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
24 Q: Mr. Hodgson, I'd like to have you
25 look at this document of 1929 which appears to be a

13

1 letter to a Mr. W. J. Skinner at Tab 31.
2 Now, what I'd like to do is take a few
3 minutes to point out some aspects of this letter and ask
4 you whether when you wrote to the Federal Government
5 asking about the -- what you call the fundamental issue
6 of the surrender and about historical research whether it
7 would have been helpful for you or your advisors to have
8 received back something of this nature for your
9 consideration in how to deal with the -- the issue at the
10 Park, all right?
11 COMMISSIONER SIDNEY LINDEN: All right.
12 I think there's enough of a question there. There may be
13 enough of a question there now for you to make an
14 objection.
15 MR. PETER LAUWERS: Thank you, Mr.
16 Commissioner.
17 In my respectful submission, this lineup
18 of questions is really aimed at making attempts to show
19 Mr. Hodgson on the one side or you on the other side,
20 that the legal advice he got was wrong.
21 The nub of the questions, when you boil
22 them down will come essentially down this: If you had
23 known that the legal advice you got was wrong, that legal
24 advice you got from counsel for the Ministry was wrong,
25 would you have taken a different position when you said,

14

1 for example, this was an illegal trespass? What is the
2 answer to that question?
3 I think, and with the of greatest respect,
4 is of no moment to this Commission. You're not sitting
5 on the land claim issue. Mr. Hodgson has given his
6 evidence on the mandate that you have, sir.
7 He's told you what he recalls of what
8 happened, what he did, and what he said, what he relied
9 on. It isn't up to My Friend to try to undermine a legal
10 opinion that Mr. Hodgson relied on through the back door.
11 The second set of submissions on that is
12 this: These are essentially legal questions that are
13 being put to a non-lawyer. We had Charles Harnick,
14 Attorney General at the time and a lawyer in the box. He
15 testified. He was not asked questions about the treaty,
16 about the surrender or about any of these things.
17 We had Larry Taman who was the Deputy
18 Minister and Larry, before he became Deputy Minister was
19 a well known lawyer and a law professor. Counsel for the
20 -- all of the ministries in the Government including the
21 Ministry of Natural Resources reports to him and is
22 accountable to him for their legal opinions. He wasn't
23 asked any questions about these issue.
24 The Legal Director Julie Jai for the ONAS
25 did testify and she was apparently asked some questions

15

1 on these issues and she was appropriately qualified to do
2 so, or the right person.
3 Mr. Hodgson, who's a non-lawyer, is now
4 being -- relied quite reasonably in my respectful
5 submission on others for legal advice. He's not
6 qualified to go down this road and to have Mr. -- Mr.
7 Klippenstein try to undermine the legal advice on which
8 he relied.
9 If -- if -- and the third point
10 essentially is this: What would -- where is all this
11 going? What would have Mr. Hodgson have done in the end
12 -- at the end of the day? I was -- in my respectful
13 submission what would have happened -- what happened?
14 On September the 5th he gave a press
15 conference, according to a script prepared by IMC which
16 he's taken you to at great length in the questions, and
17 he said there's an illegal trespass going on here.
18 That's what he did on September the 5th.
19 On September the 6th he went to two (2)
20 meetings and in the course of these meetings he
21 essentially was told we're going for an injunction. He
22 wasn't asked whether they should go for an injunction.
23 He wasn't told that his opinion mattered on the -- on the
24 question, he just sat there and listened to that and off
25 they went on the injunction.

16

1 He had no role to play that is in any way
2 on the evidence, in any way implicated by the line of
3 questioning My Friend is now going down.
4 We're going to be spending a lot of
5 time on this, and in my respectful submission it's not
6 appropriate. This is the wrong witness. It's completely
7 unfair.
8 It's in fact, I would submit, a bit --
9 almost abusive of the Witness himself in these
10 circumstances.
11 COMMISSIONER SIDNEY LINDEN: Mr.
12 Klippenstein, do you want to respond to that? We'll let
13 Mr. Klippenstein respond and then if you have some
14 observations, I'd be happy to hear them.
15 MR. MURRAY KLIPPENSTEIN: If I may, Mr.
16 Friend's points were, first of all, that I am trying to
17 undermine the legal advice and say the legal advice was
18 wrong and secondly, that I'm putting a legal question to
19 a non- lawyer.
20 And thirdly, that this Witness, Mr.
21 Hodgson, his role was not -- was fairly limited in some
22 of these matters relying on instructions, if you will, or
23 briefings from others, and therefore he's not the right
24 witness to ask this.
25 But let me just say I -- I certainly don't

17

1 intend it as a legal question and I don't intend it to
2 undermine legal advice. For starters, I don't -- we
3 don't have before us here the legal advice that Mr.
4 Hodgson gave.
5 But the point is much broader than -- this
6 arises from letters written to and from Mr. Hodgson to
7 the Federal Minister and in those letters signed by Mr.
8 Hodgson, to use his words, the fundamental issue is the
9 grievance is supposedly around the Park's creation and
10 the surrender.
11 So I'm simply addressing not legal issues,
12 but the political if you will, the broader issues that
13 were raised precisely by this Witness in an important
14 letter to a Federal Minister.
15 So it's -- it's not at all legal. It's --
16 it's -- and I think Mr. Hodgson's letter says -- it
17 refers to the -- the need for -- for legal research. I'm
18 sorry, not legal research, historical research. A
19 research into the history of the matter.
20 And so it recognizes that quite apart from
21 the legal issues there's broader issues that more
22 information is required. That it requires more
23 historical information about precisely the creation of
24 the Park and the surrender.
25 Now, I don't intend to go into that with

18

1 Mr. Hodgson; that's not the purpose of putting these
2 documents to him. I only want to take a small step from
3 the letters he's written and say, Would it have been
4 useful for you to get this information for you to
5 consider.
6 Mr. Hodgson was the Minister of Natural
7 Resources. He was a Minister of the Crown provincially,
8 and yes, he relied on advice, certainly, obviously,
9 hopefully. But he signed the letters, he made the call,
10 only he can contact the Federal Minister in that way.
11 And he was very blunt and he -- he wrote a
12 followup letter saying in essence, You haven't answered
13 my question. So it's something that was pursued,
14 correctly in my view, by Minister Hodgson at the time and
15 I want to know whether -- and he's asking for
16 information.
17 He asked about their position on the
18 validity of the surrender, but he also asked for
19 historical research, and he's testified he's worried, you
20 know, about another document popping out of the woodwork,
21 if you will.
22 So I just want to ask him, you know, would
23 it have been useful for you or your advisors to know
24 about this?
25 And if -- if the answer is, No, it

19

1 wouldn't have been useful to know about this, I will, you
2 know, I will either drop it or I will say, Well fine, you
3 didn't want to know this, how did you plan to proceed
4 without knowing, you know, some of the information? But
5 it's not a legal question.
6 I just want to know would it have been
7 useful, in your view, to have known this. And I'm going
8 to have to go to three (3) or four (4) documents and it
9 will just take a few minutes. And that's the purpose of
10 the question.
11 COMMISSIONER SIDNEY LINDEN: There may be
12 other people who have something to say on this. I'm not
13 anxious to hear from other people.
14 MR. MURRAY KLIPPENSTEIN: No, I don't
15 know if Commission Counsel has something.
16 COMMISSIONER SIDNEY LINDEN: No, but
17 other lawyers may be. I see Mr. Roy on his feet and I'm
18 not sure that I need to hear from Mr. Roy on this.
19 MR. JULIAN ROY: Could you hear from me
20 for about one (1) minute.
21 COMMISSIONER SIDNEY LINDEN: One (1)
22 minute.
23 MR. JULIAN ROY: Could we stop -- start
24 the clock right now.
25 COMMISSIONER SIDNEY LINDEN: All right.

20

1 I just don't see why you would --
2 MR. JULIAN ROY: Well, my only point is
3 that -- that Mr. Hodg -- counsel for Mr. Hodgson's
4 position seems to be that the appropriate role for a
5 Minister of the Crown is to be essentially a voice box
6 for the centre or for the Government.
7 Other parties may take a different of
8 that. Other parties may take the position that a
9 Minister of the Crown's responsibilities go further than
10 that.
11 COMMISSIONER SIDNEY LINDEN: Yes.
12 MR. JULIAN ROY: And they may want to
13 explore or -- or develop that issue by asking this
14 Witness if they would have known other information, would
15 they have acted differently and could this death have
16 been avoided.
17 COMMISSIONER SIDNEY LINDEN: Yes.
18 MR. JULIAN ROY: That's something that
19 other parties may want to do. We may not want to accept
20 the premise in counsel for Mr. Hodgson's submission.
21 COMMISSIONER SIDNEY LINDEN: Yes. Well I
22 understand that and when you --
23 MR. JULIAN ROY: That's my minute.
24 COMMISSIONER SIDNEY LINDEN: That's fine.
25 But when you ask your questions --

1 would you like to comment?
2 MS. SUSAN VELLA: I agree with Mr.
3 Lauwers, with respect to his proposition that questions
4 asking for legal conclusion should not be asked this
5 Witness. I don't think there's a disagreement with
6 respect to that.
7 COMMISSIONER SIDNEY LINDEN: I think Mr.
8 Klippenstein agrees with that.
9 MS. SUSAN VELLA: Correct.
10 COMMISSIONER SIDNEY LINDEN: He's not
11 going to ask him legal questions.
12 MS. SUSAN VELLA: Correct. However, some
13 questions may be appropriate with respect to these
14 matters, for example, whether or not he -- the Minister
15 would have expected this type of information to be
16 brought to his attention.
17 Now, that presumes, to a degree, a certain
18 knowledge base on the part of Mr. Hodgson with respect to
19 whether he can make -- could make that judgment call. We
20 don't know the answer to that until the question is
21 asked.
22 So, I think that that's probably our
23 staring point here and then the propriety of further
24 questions will then be determined in that respect.
25 COMMISSIONER SIDNEY LINDEN: But it

23

1 doesn't require legal expertise or it doesn't require to
2 be a lawyer in order to make those determinations.
3 MS. SUSAN VELLA: I don't -- it presumes
4 a knowledge base of some sort.
5 COMMISSIONER SIDNEY LINDEN: It may not.
6 MS. SUSAN VELLA: But yes, he may --
7 COMMISSIONER SIDNEY LINDEN: But, it may
8 be facts.
9 MS. SUSAN VELLA: -- he may well say,
10 Look at, I wish I had had this documentation brought to
11 my attention because then I would have directed further
12 research.
13 But I don't know that we can go further
14 than that to ask him to express whether it would have
15 altered his conclusion with respect to the validity of
16 the surrender. I -- I think that that's going too far.
17 COMMISSIONER SIDNEY LINDEN: Well, I
18 agree with Mr. Lauwers too, that I don't think that this
19 Witness can or should be asked any questions that could
20 be characterized as legal questions and neither do I
21 think that any legal opinions if any should be reviewed,
22 and I don't think that's what's being -- what's being
23 here.
24 I am concerned about getting too far into
25 the question of the surrender and the role of it in this

24

1 Inquiry. I don't think it's irrelevant but neither do I
2 think there's a great deal of time that we can justify
3 spending on that at this Inquiry.
4 So, some questions I think are legitimate
5 and relevant, and I don't think you've asked one yet that
6 I don't think Mr. Hodgson can't answer. I think he can
7 answer and his answers might be helpful so far.
8 MR. MURRAY KLIPPENSTEIN: Okay.
9 COMMISSIONER SIDNEY LINDEN: So, the way
10 I'm going to deal with this question by question. I have
11 to. I don't think I can rule a whole area out of bounds.
12 I think it could well be relevant.
13 Mr. Lauwers, I expect you to be attentive
14 and not reluctant to stand and object with respect to any
15 question but I'm not prepared to say that this whole area
16 is not to be questioned.
17 MR. PETER LAUWERS: You can count of me
18 to be attentive and responsive.
19 COMMISSIONER SIDNEY LINDEN: Thank you.
20 I've seen a copy of the letter that you're referring to
21 and so I do know something about it. It's very hard to
22 see how far you can go, but I'm not going to determine it
23 in advance.
24 MR. MURRAY KLIPPENSTEIN: I will take it
25 step by step, Commissioner.

25

1
2 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
3 Q: Mr. Hodgson, the letter at Tab 31,
4 and I wonder, Commissioner, I could get an exhibit number
5 for this letter?
6 COMMISSIONER SIDNEY LINDEN: Yes, as you
7 know we've been pretty liberal about marking matters as
8 exhibits even when in a courtroom they would not be
9 accepted as exhibits.
10 MR. MURRAY KLIPPENSTEIN: I understand.
11 COMMISSIONER SIDNEY LINDEN: I mean,
12 that's been our pattern all along. If it's in our
13 document base we've almost been accepting them routinely.
14 MR. MURRAY KLIPPENSTEIN: Well, this --
15 COMMISSIONER SIDNEY LINDEN: This is
16 not --
17 MR. MURRAY KLIPPENSTEIN: This is -- this
18 is not --
19 COMMISSIONER SIDNEY LINDEN: -- not in
20 our database. I'm aware of that.
21 MR. MURRAY KLIPPENSTEIN: It was -- it
22 was obtained through outside research so I'm -- I'm in --
23 COMMISSIONER SIDNEY LINDEN: Yeah.
24 MR. MURRAY KLIPPENSTEIN: -- I'm in the
25 Commission's hands, but we could mark it as exhibit for

26

1 ease of a reference now or later or -- or wait. I'm --
2 I'm in the Commissioner's hand.
3 COMMISSIONER SIDNEY LINDEN: I don't
4 know. Well, perhaps Ms. Vella can help us.
5 MS. SUSAN VELLA: The general concern I
6 have about this document is that it was only brought to
7 our attention very, very late in the day. I believe late
8 Friday.
9 I haven't had any opportunity to look into
10 for example the authenticity of the document. It's not
11 part of our database so if we do assign an exhibit number
12 it must be very clear that -- that this document iss for
13 ease of reference purposes only.
14 COMMISSIONER SIDNEY LINDEN: Yes. And it
15 is astonishing that after all these years, and all this
16 investigation, and all this work that all of us have done
17 that documents are still surfacing at this late date.
18 So, I don't think we can ignore that possibility --
19 MR. MURRAY KLIPPENSTEIN: Right.
20 COMMISSIONER SIDNEY LINDEN: -- that
21 documents do surface.
22 MR. MURRAY KLIPPENSTEIN: Yes.
23 COMMISSIONER SIDNEY LINDEN: Okay.
24 MR. MURRAY KLIPPENSTEIN: Well, I -- I
25 fully accept My Friend, Ms. Vella's, qualifications on an

27

1 exhibit number but maybe with those in mind we can have
2 it assigned a number.
3 COMMISSIONER SIDNEY LINDEN: What's the
4 number?
5 THE REGISTRAR: P-1021, Your Honour.
6
7 --- EXHIBIT NO. P-1021: Letter dated March 19, 1929
8 from W.R. Paul to W. J.
9 Skinner.
10
11 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
12 Q: Mr. Hodgson, if you look at this
13 letter of March 19th, 1929, which is now Exhibit P-1021,
14 you will see that it's to a Mr. Skinner.
15 Do you see that?
16 A: Yes.
17 Q: And at the bottom there is just the
18 initials WRP, at the bottom left; do you see that?
19 A: Yes.
20 Q: And about in the middle --
21 COMMISSIONER SIDNEY LINDEN: Just before
22 you proceed. Do you know -- would you know this person
23 Mr. Skinner? I just want to make this clear. Or
24 initials? I just make sure you don't have any knowledge
25 of any of this.

28

1 THE WITNESS: No.
2 COMMISSIONER SIDNEY LINDEN: Okay.
3 MR. MURRAY KLIPPENSTEIN: That is what I
4 wanted --
5 COMMISSIONER SIDNEY LINDEN: You were
6 going to do that?
7 MR. MURRAY KLIPPENSTEIN: Very briefly
8 clarify, yes.
9 COMMISSIONER SIDNEY LINDEN: Okay.
10 That's fine.
11
12 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
13 Q: And in the middle of the letter which
14 -- or paragraph 3, you see a ref -- you see the name "Tom
15 -- Tom's office"; do you see that?
16 A: Yes.
17 Q: Now just so you understand the
18 context, if you could turn to Tab 36 which is a
19 reproduction of the Annual Report for 1927 for the
20 Industrial Mortgage and Savings Company.
21 And at the bottom of the first page is a
22 list of the Board of Directors; do you see that?
23 A: Where are you looking?
24 Q: I'm looking now at Tab 36 which,
25 first page, is a reproduction of -- of an Annual Report

29

1 of the Industrial Mortgage and Savings Company. Do you
2 see that?
3 A: Okay.
4 Q: And you have to turn the page
5 sideways but at the bottom of that sideways page, there's
6 a heading, small heading called, Board of Directors; do
7 you see that?
8 A: Yes.
9 Q: And do you see at the bottom of the
10 left list of that Board of Directors, the name W.J.
11 Skinner appears?
12 A: Okay.
13 Q: And also in that list is the name
14 W.R. Paul; do you see that?
15 A: Where's that? Okay.
16 Q: In --
17 A: What is -- T. Paul?
18 Q: W.R. Paul; it's the last name in the
19 Board of Directors list. Do you see that?
20 A: Okay.
21 Q: And also the name Thomas Paul on the
22 right hand column of the Board of Directors list; do you
23 see that? It's spelled T-H-O-S, Thomas Paul.
24 A: Okay.
25 Q: Okay. So, those three (3)

30

1 individuals are on the Board of Directors of this
2 Industrial Mortgage and Savings Company according to this
3 reproduction of the Annual Report.
4 Now, turning back to the letter of March
5 19th, 1929, three (3) of those individuals are referred
6 to on this page and to some extent I have some further
7 documentation on that point.
8 But for now I won't take time up with
9 that. But the addressee of the -- of this letter is W.J.
10 Skinner at the top who's a Member of the Board of
11 Directors that we just saw.
12 Do you see the -- the name up top now?
13 A: Yes.
14 Q: And at the bottom, the initials WRP.
15 I can -- I can tell you refer to the W.R. Paul who was
16 also on the Board of Directors.
17 COMMISSIONER SIDNEY LINDEN: I'm sorry.
18 How can you make that determination?
19 MR. MURRAY KLIPPENSTEIN: That comes from
20 a number of documents which -- well -- and from the
21 context of the letter. For example --
22 COMMISSIONER SIDNEY LINDEN: Well, you
23 can make that argument, but that's certainly not obvious.
24 I mean, you could make that argument --
25 MR. MURRAY KLIPPENSTEIN: Yes. I -- I --

31

1 COMMISSIONER SIDNEY LINDEN: That's fine.
2 MR. MURRAY KLIPPENSTEIN: I -- I will
3 make the argument. I don't intend to take up time now
4 and obviously any question I had is subject to that, but
5 I -- I can tell you that the documentation shows that,
6 including various articles in the --
7 COMMISSIONER SIDNEY LINDEN: But, there's
8 no witnesses here that can authenticate or confirm that.
9 MR. MURRAY KLIPPENSTEIN: Not right now.
10 I mean -- no -- yes.
11 COMMISSIONER SIDNEY LINDEN: And that's
12 the problem. You're going to go down a road that's going
13 to take us a long time to come back to where we are now.
14 But carry on.
15
16 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
17 Q: Okay. And the third name, the 'Tom'
18 is the Thomas Paul, also on that Board of Directors who I
19 just referred you to, and for one last --
20 COMMISSIONER SIDNEY LINDEN: I'm asking
21 you, Mr. Klippenstein, not to draw conclusions from the
22 statements in the letter because it's not apparent that
23 those are legitimate conclusions at this stage.
24 MS. SUSAN VELLA: I echo that,
25 Commissioner. I'm becoming increasingly uncomfortable

32

1 with --
2 COMMISSIONER SIDNEY LINDEN: Yes, I am
3 too.
4 MS. SUSAN VELLA: -- the number of
5 suppositions that the Witness is being asked --
6 COMMISSIONER SIDNEY LINDEN: Yes.
7 MS. SUSAN VELLA: -- to make --
8 COMMISSIONER SIDNEY LINDEN: Yes.
9 MS. SUSAN VELLA: -- given that he has no
10 direct knowledge and --
11 COMMISSIONER SIDNEY LINDEN: That's
12 right.
13 MS. SUSAN VELLA: -- that we have no
14 evidence before the Inquiry to support any of this.
15 COMMISSIONER SIDNEY LINDEN: Yes. I
16 understand that. I'm getting troubled too. If you asked
17 him to look at the letter and asked him if he had this
18 letter if it had made any different to him, those are
19 questions you can ask him, but once you start drawing
20 conclusions from -- from a letter from 1929 I get very
21 uncomfortable.
22 MR. MURRAY KLIPPENSTEIN: Well, I
23 appreciate that and why don't I proceed through the
24 letter and I -- so I can get to my basic question which
25 is to -- to see whether the Witness will find this

33

1 useful.
2 COMMISSIONER SIDNEY LINDEN: Yes, you put
3 it in. Let him read it and see if it would have made any
4 difference to him --
5 MR. MURRAY KLIPPENSTEIN: Okay.
6 COMMISSIONER SIDNEY LINDEN: -- and leave
7 it at that.
8
9 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
10 Q: Okay. And the -- the fourth name
11 which is in the first line, Mr. Hodgson, of the letter,
12 the first paragraph says --
13 COMMISSIONER SIDNEY LINDEN: Well --
14 MR. MURRAY KLIPPENSTEIN: "I have an
15 application for a loan from W. J. Scott
16 of this city. I will explain the
17 circumstances so that you will have a
18 better idea of just what he wants.
19 There was a surrender of land by the
20 Stoney Point Indians which surrender
21 includes some two (2) miles -- about
22 two (2) miles of lake frontage. The
23 rest of the land, as I understand it,
24 is absolutely worthless being nothing
25 but drifting sand. Therefore the value

34

1 is in the lake frontage which I am told
2 is somewhat similar to Ipperwash beach
3 only, if anything, better.
4 For this land they are paying thirteen
5 thousand five hundred dollars ($13,500)
6 plus eight hundred ($800) to one (1)
7 Indian and fifteen hundred dollars
8 ($1,500) to another making a total of
9 fifteen thousand dollars eight hundred
10 ($15,800). They would like to borrow
11 as near eight thousand (8,000) as
12 possible but I am quite convinced that
13 they can do with somewhat less than
14 eight thousand (8,000).
15 So far as the price they are paying is
16 concerned, I know this to be absolutely
17 correct because the surrender went
18 through or will go through Tom's
19 office, and he showed me a diagram of
20 the surrender which corroborates
21 everything that Mr. Scott told me.
22 We think here that if they could get
23 along with say sixty-five hundred
24 dollars ($6,500) it would be a safe
25 loan. The lake frontage of two (2)

35

1 miles is point five six zero (.560)
2 feet and if they can interest some
3 Detroit real estate man and sell it for
4 five dollars ($5.00) or even three
5 dollars ($3.00) a foot they will be
6 able to clean up a considerable sum of
7 money.
8 I would like to have your opinion about
9 it and if you happen to be in Sarnia I
10 could have Tom meet you here and show
11 you the dope that he has on the
12 transaction. I will be glad to hear
13 from you as soon. Yours truly, W.
14 Scott"
15 COMMISSIONER SIDNEY LINDEN: You've got a
16 Witness on the stand, ask him a question.
17 MR. MURRAY KLIPPENSTEIN: Yes.
18 COMMISSIONER SIDNEY LINDEN: That's fine.
19
20 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
21 Q: Now, Mr. Hodgson, the -- the letter
22 here apparently, and I -- I -- you'll -- some -- some of
23 these -- some of this will be subject to further evidence
24 or -- or judicial notice, suggests that the purchaser of
25 the surrendered lands which became the Park, W. J. Scott,

36

1 obtained some financing on which the Indian agent had
2 been recently, or perhaps even currently, a member of the
3 Board of Directors and that the Indian agent had --
4 COMMISSIONER SIDNEY LINDEN: It's the
5 conclusions again. I say this, Mr. Klippenstein, with
6 great respect it's the inferences and the conclusions
7 that you're drawing from the letter that I don't think
8 are appropriate at this stage.
9 You've read the letter to him, now ask him
10 questions about the letter. Let him draw any conclusions
11 from it if he can.
12 MR. MURRAY KLIPPENSTEIN: But, to -- to
13 be honest and to be fair, I don't think it's fair without
14 one (1) or two (2) more items of information to even --
15 COMMISSIONER SIDNEY LINDEN: But it's
16 information on which you're drawing conclusions that are
17 not justified at this point in time. It's not
18 information, it's conclusions, it's connections, it's
19 evidence that we don't have and you're not able to give
20 us that evidence. So I'd appreciate if you'd ask Mr.
21 Hodgson a question about the letter which you've now read
22 to him.
23 MR. MURRAY KLIPPENSTEIN: All right.
24
25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:

37

1 Q: Mr. Hodgson, this letter talks about
2 -- well, I would -- I would just ask you to make -- to
3 make one (1) assumption which, Commissioner, Mr. Hodgson
4 is well founded on the evidence, and that is that the
5 "Tom" referred to there is indeed Thomas Paul the Indian
6 Agent for the surrender.
7 And given this letter which discusses the
8 involvement of Thomas Paul in providing information in
9 support of the loan for the financing of the surrender,
10 would you -- would you have been inter -- do you think it
11 would have been useful to you or your advisors to have
12 this information around the time of your letters of
13 request to the Federal Government about possible
14 grievances related to the surrender?
15 COMMISSIONER SIDNEY LINDEN: Okay.
16 That's a question that you can as Mr. Hodgson. I think
17 you can, but subject to what Mr. Lauwers has to say right
18 now.
19 MR. PETER LAUWERS: Mr. Commissioner,
20 earlier I submitted to you that these questions when you
21 poke through them, all boil down to an effort to
22 undermine a legal opinion, in other words to challenge
23 the validity of the surrender.
24 What My Friend is now doing is he is
25 suggesting there's some sort of collusion going on in

38

1 1929 around the sale of this property. Where he's going
2 to go next, I can just predict this because it's pretty
3 obvious, he's going to say, Well, look at, look how much
4 profit can be made off the sale of this property;
5 obviously an improvident transaction, lack of
6 consideration.
7 With the greatest of respect, it is not
8 appropriate to undermine a legal opinion in this manner
9 with this particular Witness.
10 COMMISSIONER SIDNEY LINDEN: Yes.
11 MR. PETER LAUWERS: It's not relevant to
12 your Inquiry. And that's where he's going with this. He
13 wants you to decide on the validity of the surrender and
14 decide the land claim.
15 COMMISSIONER SIDNEY LINDEN: I'm not
16 going to do that, Mr. Lauwers. I'm not going to decide
17 on the validity of the surrender and I'm not going to
18 resolve the land claim. So I can you give you that
19 assurance.
20 COMMISSIONER SIDNEY LINDEN: Yes...?
21 MR. JONATHAN GEORGE: This area does
22 directly affect my Client, Commissioner, and I didn't
23 want to earlier make an untimely objection but I think I
24 do -- am compelled to indicate to you the difficulty I
25 have with this line of questioning.

39

1 I didn't make the earlier objection
2 because I thought your direction to Mr. Klippenstein
3 was --
4 COMMISSIONER SIDNEY LINDEN: Pretty
5 limited.
6 MR. JONATHAN GEORGE: -- the letter and
7 the content of the letter and ask him whether or not that
8 would have affected his decision making at the time.
9 COMMISSIONER SIDNEY LINDEN: That's what
10 I intended.
11 MR. JONATHAN GEORGE: What he's doing is
12 much more than that.
13 COMMISSIONER SIDNEY LINDEN: Yes.
14 MR. JONATHAN GEORGE: I'm not suggesting
15 that's what Mr. Klippenstein's intention is, but it
16 inevitably elicits that kind of answer, opinion from this
17 Witness and I do have difficulty with that.
18 COMMISSIONER SIDNEY LINDEN: Yes, it's
19 hard to keep this in a contained way and I agree we try
20 to keep it contained but...
21 MR. MURRAY KLIPPENSTEIN: Well --
22 COMMISSIONER SIDNEY LINDEN: The question
23 that you just asked him was essentially if he'd had the
24 information contained in this letter at the time would it
25 have made any difference? Is that --

40

1 MR. MURRAY KLIPPENSTEIN: Well, not
2 quite. I didn't even go that far. I took a small --
3 smaller step which was --
4 COMMISSIONER SIDNEY LINDEN: Yes.
5 MR. MURRAY KLIPPENSTEIN: -- whether the
6 information contained in this letter would have been
7 helpful to him and his advisors at that time in
8 considering the issue at the Park and what the Government
9 could or should do about it.
10 COMMISSIONER SIDNEY LINDEN: Ms. Vella,
11 do you have any objection to that question?
12 MS. SUSAN VELLA: No, I don't. The --
13 the proviso that I wish to make is that Mr. Klippenstein
14 has asked the Witness to make some assumptions.
15 COMMISSIONER SIDNEY LINDEN: Yes.
16 MS. SUSAN VELLA: He's indicated that it
17 may be the subject of evidence of judicial notice. I
18 don't understand that. But I want to put on the record
19 that -- that we don't have an evidentiary foundation
20 right now for those assumptions and that should just be
21 made clear.
22 COMMISSIONER SIDNEY LINDEN: Yes.
23 MS. SUSAN VELLA: It affects of course
24 the weight of the answer at the end of the day.
25 COMMISSIONER SIDNEY LINDEN: I agree with

41

1 that. I don't think the question is as phrased is
2 improper.
3 But I am very concerned, Mr. Klippenstein
4 and you can hear everybody is too, about going down this
5 road, about challenging the validity of the surrender or
6 asking me to make any determination regarding a land
7 claim because I'm not prepared to do either in this
8 Inquiry.
9 MR. MURRAY KLIPPENSTEIN: Well, maybe I
10 could just repeat the actual question then.
11 COMMISSIONER SIDNEY LINDEN: Yes.
12
13 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
14 Q: Mr. Hodgson, this letter appears to
15 suggest issues arising from the apparent involvement of
16 the Indian agent who supervised the surrender in
17 supporting financing of the surrender to be obtained by
18 the purchaser.
19 Would it have been useful for you at this
20 time you wrote these letters asking for historical
21 research, for you and your advisors to have this
22 information as input into your consideration of what to
23 do next with respect to the issue at the Park?
24 A: I have no idea.
25 Q: All right.

42

1 COMMISSIONER SIDNEY LINDEN: I'm not sure
2 how much more you can do with this.
3 MR. MURRAY KLIPPENSTEIN: If --
4 COMMISSIONER SIDNEY LINDEN: I'm not sure
5 how much more you can do with this.
6
7 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
8 Q: Would it have been useful to you and
9 your advisors at that time to be apprised of information
10 that reasonably suggests that the Indian agent was
11 tangled up in the financing of the purchase? Would that
12 have been useful --
13 COMMISSIONER SIDNEY LINDEN: Yes.
14
15 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
16 Q: -- at the time to have -- have before
17 you for you to try and sort out what the legitimate
18 issues might be and how to solve them? Would that have
19 been useful?
20 COMMISSIONER SIDNEY LINDEN: Yes, Ms.
21 Vella? I'm not sure about that question.
22 MS. SUSAN VELLA: Two (2) -- two (2)
23 concerns. The first is he's asking Mr. Klippenstein
24 whether or not this would have been useful for Mr.
25 Hodgson's advisors. I don't think that's an appropriate

43

1 question.
2 Secondly, if I'm understanding the
3 timeframe of the question in terms of whether it would
4 have been useful for him to have known, I think he's
5 referring now to 1996, the period of the exchange of
6 correspondence with respect to Minister Irwin.
7 I don't see how that advances the -- the
8 Inquiry very far in terms of understanding what gave rise
9 to the events in 1995, particularly since the questions
10 are not aimed at whether or not the surrender was, in
11 fact, valid which is something that -- that this Witness
12 can't answer, but rather as to whether it would have
13 affected his position, presumably at the time of the
14 occupation, from September 4th to the 6th, about his
15 understanding of the validity of Toron -- of Ontario's
16 title.
17 So, I think that this is a problematic
18 question.
19 COMMISSIONER SIDNEY LINDEN: So you're
20 objecting to it?
21 MS. SUSAN VELLA: Yes.
22 COMMISSIONER SIDNEY LINDEN: Yes. I
23 would --
24 MR. MURRAY KLIPPENSTEIN: In essence,
25 Commissioner, I'm trying to ask this Witness, step by

44

1 step, in small steps, whether information showing that
2 the conduct of the Indian agent in the surrender was --
3 COMMISSIONER SIDNEY LINDEN: But, that's
4 the point. You can't show that. You can't --
5 MR. MURRAY KLIPPENSTEIN: I -- I -- I'm
6 just saying that -- I'm asking the Minister, at the time,
7 whether having information about that surrender as he
8 appears to have requested repeatedly --
9 COMMISSIONER SIDNEY LINDEN: Yes.
10 MR. MURRAY KLIPPENSTEIN: -- would have
11 been useful. And if the answer is no or I don't know, I
12 will --
13 COMMISSIONER SIDNEY LINDEN: No. He just
14 gave that answer.
15 MR. MURRAY KLIPPENSTEIN: -- I will
16 address that in argument.
17 COMMISSIONER SIDNEY LINDEN: That's what
18 I'm saying. He just gave that answer. You can take it
19 as a given. He just said, I don't know, I have no idea;
20 I think that's what he said.
21 MR. MURRAY KLIPPENSTEIN: All right.
22 COMMISSIONER SIDNEY LINDEN: And I don't
23 think I'm prepared to go much farther with this area.
24
25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:

45

1 Q: Well, Mr. Hodgson, was it in fact the
2 case, in 1996 when you wrote these letters to the Federal
3 Minister, saying among other things:
4 "I believe that there's an urgent need
5 to have the historical record
6 reviewed."
7 Did you, in fact, want more information
8 about the -- the grievance related to the 1928 surrender?
9 A: In 1996 we were writing the letters
10 based on the legal advice of the Attorney General. ONAS
11 is responsible, and I just want to remind the Commission
12 of that, for Native Affairs Secretariat.
13 In the MNR's context, we were writing
14 letters to Minister Irwin. There was some -- I met with
15 Chief Bressette and asked if we could help in terms of
16 trying to sort out some local issues in part. This is in
17 1996.
18 Up until that time there's only a brief
19 time where I was asked to be the spokesperson. The lead
20 on this file was the Minister in charge of ONAS and the
21 legal department of the Attorney General.
22 So, you'd have to ask them if they thought
23 that that's what they were looking for in terms of
24 research.
25 Q: All right. Now, let me ask about

46

1 whether -- I mean, you wrote these letters or you signed
2 them rather let me say. You signed these letters to the
3 Federal Minister of Indian Affairs --
4 A: Right.
5 Q: -- saying, among other things, that
6 you believe there's an urgent need to have historical
7 records reviewed.
8 I would -- I take it you would agree that
9 it wasn't only a legal question, it was also a political
10 question; what to do about the Park. Is that fair?
11 A: I can't recall the circumstances
12 around that. I know that -- met with Chief Bressette.
13 There was discussions on bringing in a mediator, Lloyd
14 Girman.
15 My recollection is more around the
16 potential for a grave site. Anything to do with the land
17 claim, my recollection, was always believed, that the
18 occupiers should file one; that there shouldn't have been
19 an occupation. You file a land claim before you just go
20 in and -- and take over an area.
21 Q: So, are you saying in response to my
22 question that it was a political issue or not; that it
23 was purely a legal question?
24 A: I can't recall the -- the
25 circumstances, specifically ten (10) years ago in 1996,

47

1 but I just gave you my recollection of what happened.
2 Q: All right. So, are you saying that
3 the letter of April 2, 1996, Exhibit P-1012, basically
4 came from ONAS advisors and you just signed it and sent
5 it?
6 A: There would have been a short
7 discussion around some of the underlying fundamental
8 issues around the Camp Ipperwash being returned to the
9 First Nation; was what we still believe was one of the
10 underlying grievances on the motive behind the occupation
11 of the Park.
12 To make sure that we could get a clear
13 understanding and resolving some of those deep underlying
14 issues, we asked for any information that the Federal
15 Government may have in regard to this.
16 This is before the Federal Government
17 informed Mr. Girman, I'm told, and this is third hand,
18 that they didn't want to be a party of that. And that's
19 where the exercise ended is my recollection.
20 Q: But the letters -- the two (2)
21 letters you wrote, Mr. Hodgson, focus not on the Military
22 Base, but on the Park. And are you saying that's not
23 what -- your intention when you signed these letters?
24 A: No, I'm just giving you the context
25 of --

48

1 Q: All right.
2 A: -- of the time that the letters went
3 out.
4 Q: All right. But the -- the letters
5 are you saying that these two (2) letters originated from
6 ONAS and, although you discussed them, they basically
7 originated from ONAS and it was their issue?
8 A: Oh, I couldn't be precise on that.
9 There was probably a group of legal advisors that were
10 looking into this to say what's the baseline here; is
11 there going to be any surprises? It was more of a
12 defensive move.
13 Q: So -- so to the best of your
14 recollection or understanding, people were saying what's
15 the baseline here, are there going to be any surprises?
16 A: Well, I don't know if they used those
17 words. Those are my words.
18 Q: Right.
19 A: I assume that lawyers would use more
20 sophisticated language.
21 Q: Yes.
22 COMMISSIONER SIDNEY LINDEN: Not
23 necessarily.
24 THE WITNESS: Okay, that's an assumption
25 that shouldn't be made.

49

1
2 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
3 Q: But are you saying that you didn't
4 actually see yourself as having a political role as the
5 Minister of Natural Resources when you sent these
6 letters, that it was basically being -- you were the
7 channel, but it was basically coming from ONAS -- ONAS
8 lawyers?
9 A: I'm not sure if you'd characterize
10 the ONAS lawyers -- the lawyers all report to the
11 Attorney General, and I can't recollect who the
12 individuals were that were working on this file.
13 Q: Hmm hmm. But it sounds to me as if,
14 although as Minister of Natural Resources you -- you were
15 managing the Parks, that this was out of your hands and
16 it was in the hands of the Attorney General and the
17 lawyers; is that what you're saying?
18 A: The -- the whole issue, as you asked
19 me yesterday, you know, were you briefed on this a lot?
20 No, this wasn't considered an MNR issue.
21 The Park itself, the water system, the
22 reopening of the Park in the Spring, those were questions
23 that were MNR issues.
24 Q: All right. So aside from that, the
25 issue of the actual alleged grievance and alleged

50

1 potential justification for the trespass, that -- that
2 wasn't something that you were really concerned about
3 yourself?
4 A: The -- the issue itself, the
5 occupation?
6 Q: No, the underlying potential
7 justification for the occupation?
8 A: I would assume that if there's a
9 justification that they would do the normal channel and
10 they'd make -- file a claim in Courts.
11 Q: Okay, but your -- the two (2) letters
12 signed by you go much farther than that. They -- you --
13 you identify in your -- in the letter signed by you, the
14 key issue and again, you say in your letter,
15 "Your response did not address a key
16 issue which Ontario believes is
17 fundamental to the present illegal
18 occupation of the Park."
19 COMMISSIONER SIDNEY LINDEN: I think
20 we've been through this, Mr. Klippenstein. You've read
21 this to him, he's -- you've asked the questions, he's
22 answered the questions. I don't think you need to go
23 over it again, I really don't.
24
25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:

51

1 Q: Did you at any time, as Minister of
2 Natural Resources, yourself, take or initiate any steps
3 to -- to review or research the issue of the potential
4 grievance about the surrender of the Park lands or did
5 you leave that all to the Attorney General's department?
6 A: What do you mean by that? Did I go
7 to the Registry office, or what are you talking about?
8 Q: Well, as I said, do you yourself
9 initiate or -- or carry out, or have your staff carry out
10 under your direction, any -- as Ministry of Natural
11 Resources, any research into the issue you identify here
12 as the -- the grievance -- potential grievance about the
13 original surrender?
14 A: Well --
15 Q: Because frank -- frankly I -- it
16 seems to me like --
17 A: No, this would be the ONAS Ministry
18 that --
19 Q: All right.
20 A: -- would be in charge of Native
21 affairs in the Province of Ontario.
22 Q: So, you left it to ONAS, basically?
23 A: I didn't leave it; it was theirs.
24 Q: All right. And did anything come
25 back to you from ONAS related to these letters, and I

52

1 know these letters aren't to ONAS, but what -- about what
2 you've said in this letter was the fundamental issue?
3 Did you get any reports or research or any
4 -- any kind of issue analysis back from ONAS about this
5 issue?
6 A: Not that I can recall.
7 Q: All right. So you, as Minister of
8 Natural Resources, proceeded basically not having much
9 more to do with the issue of the occupation of the Park
10 because it was in the hands of ONAS?
11 A: We never did have anything to do with
12 the occupation of Ipperwash Park other than one (1) press
13 conference. And the next day Larry Taman said that the
14 Attorney General would be in charge of communications.
15 Q: And as I understand it, from your
16 evidence, you were the Minister of Natural Resources
17 until October 1997, right?
18 A: I believe that's so.
19 Q: And so during that period, the Park,
20 until 1997, when you ceased to be Minister of Natural
21 Resources, was occupied and you, as Minister, took no
22 particular further steps to deal with the -- the
23 occupation?
24 A: I can't recall.
25 Q: Okay. Meaning you can't recall any

53

1 such steps?
2 A: Well, I know we -- we hired Lloyd
3 Girman to go down and see if we could resolve some of the
4 fundamental issues and bring the parties together, and
5 that wasn't successful. And that was --
6 Q: So, other than the --
7 A: -- the extent of my recollection
8 today.
9 Q: Okay. So other than the Girman
10 appointment you can't recall any -- any other initiatives
11 from MNR?
12 A: Not right now.
13
14 (BRIEF PAUSE)
15
16 Q: If you could take the large white
17 binder, I believe it is, that we've pre -- prepared for
18 you.
19 A: Yeah.
20
21 (BRIEF PAUSE)
22
23 Q: It's the Julie Jai brief.
24 A: Yeah.
25 Q: If you turn to Tab 10.

54

1 (BRIEF PAUSE)
2
3 Q: And that, at Tab 10, is a memorandum
4 for the Ministry of Attorney General Department. Do you
5 see that? Is that right?
6 A: Yes.
7 Q: Dated -- well, it -- the memo itself
8 doesn't have a date other than it refers to the trial,
9 October 21 to November 1, 1996.
10 This memo is a memo by Henry Van Drunen,
11 Assistant Crown Attorney, dealing with some of the
12 charges against the occupiers of the Park. And it talks
13 about the colour of right defence, namely the apparent
14 belief of the occupiers that they had a right to be in
15 the Park.
16 And as a result this memo advises that the
17 -- that there is a -- that there is no reasonable
18 prospect of conviction of the charges of -- of forcible
19 detainer of the Park, and that the charges will be
20 withdrawn.
21 Now, do you recall, at this point in time
22 in 1996, the charges being withdrawn or dropped,
23 according to -- against a variety of Park occupiers? Do
24 you remember this happening?
25 A: No, I don't.

55

1 Q: Okay. Did anybody in your department
2 advise you, around about this time in 1996, that charges
3 had to be dropped or were dropped against quite a large
4 number of trespasser, because their apparent belief that
5 they had a right to be there, meant that they couldn't be
6 convicted. Did anybody --
7 A: I don't recall that.
8 Q: All right.
9 A: Doesn't mean it didn't happen, but I
10 don't recall.
11 Q: Right. But you -- it certainly
12 didn't -- if somebody told you about that or you became
13 aware of it, it didn't register to the point where you
14 now remember it?
15 A: No. I don't recall. It wasn't our
16 Department.
17 Q: And consistent with what you
18 mentioned a few moments ago, looking at this now, it's
19 your assessment that if the charges were dropped because
20 of the protestors' believe that they had a right to be
21 there, that wouldn't have particularly concerned you at
22 the time because you viewed it not as an MNR brief, but
23 as a Department of the Attorney General brief; is that
24 fair?
25 A: Well, I wouldn't feel that I was

56

1 qualified to have an opinion other than to get the
2 evidence, get briefed by appropriate staff and have a
3 meeting on it. I don't recall that.
4 Q: All right. During this period, did -
5 - did you or any of your staff sit down and say, What is
6 going on here in the Park; why are these people believing
7 they have a right to be there; what's behind it? Do you
8 ever recall any such discussion?
9 A: In the early days it was a widely
10 shared belief that it was in the inaction of the Federal
11 Government. There was a progression from '93 when the
12 part of the Military Camp was occupied -- was unoccupied,
13 and then in '95 when they moved into the occupied part of
14 the Federal Government land, and they still didn't get
15 any attention in the Federal Government, there was a
16 belief that was the key underlying motive.
17 Later on there was a -- I recall, just
18 brief discussions, not that it was you know, a huge
19 formal briefing or not, but the burial site became an
20 issue in the papers.
21 And it was a certainly shared belief that
22 if there was a burial site it should be examined, and if
23 you find one it should be properly located, cordoned off
24 and all the appropriate actions under the Cemeteries Act
25 and the Ministry of Consumer and Commercial Relations

57

1 procedures should be followed.
2 Q: But, obviously by the time of the --
3 of the 1996 letters, since the letters that you signed
4 focussed on the issue of the surrender, somebody at least
5 was saying there's something potentially here --
6 A: No, they weren't actually. My
7 understanding, it's just a recollection, was that was a
8 defensive action to try to make sure that, you know, make
9 sure that all the aspects are covered, the baseline is
10 covered, and so they should ask questions of the Federal
11 Government, if they have any knowledge on that. But the
12 main concern was around the grave site and the Military
13 Camp owned by the Federal Government.
14 Q: So, your recollection was that the
15 letter to the Minister was not so much an investigation,
16 but as a -- but a CYA letter, a -- a cover-your-butt
17 letter, saying if you --
18 A: That was my recollection, although I
19 can't be specific on it, but that was my recollection of
20 the advice on why we're sending this letter.
21 Q: All right. So that may explain why
22 we don't have any evidence that it was followed up,
23 either with a further letter or with research or
24 something happening in your MNR Department, in terms of
25 whether there was something real to this underlying

58

1 surrender grievance, because it was -- you felt you had
2 your bases covered, right?
3 A: That's my assumption. You have to
4 ask Legal Department if there's --
5 Q: Okay.
6 A: -- if that's true.
7 Q: And let me ask a number of questions
8 about the -- the burial ground issue.
9
10 (BRIEF PAUSE)
11
12 Q: In your -- your testimony in-chief,
13 you were asked about -- to page 119 on January 12th
14 transcripts, that whether a question:
15 "Did you have any understanding as to
16 what remedies or options there were for
17 First Nations people who asserted that
18 Aboriginal burial grounds were located
19 on a Provincial Park or public
20 property?"
21 And then you talked about -- you said:
22 "A: Yes, I understood there was a
23 detailed process that could be followed
24 upon notice."
25 You continue:

59

1 "And I'm sure there was a process that,
2 you know, it can be triggered by a
3 phone call or a letter, notifying that
4 we believe there's a site of
5 significance on your Park or on the
6 Crown land in such and such an area.
7 And then it kicks in a process through
8 Consumer and Commercial Relations,
9 where they do a formal investigation,
10 along with the First Nation or whoever
11 makes the proposition that there is a
12 sacred site or a grave site."
13 And I'd like to ask you some questions
14 about -- about that. Did you have any more detailed
15 understanding of the process that -- that you're talking
16 about there?
17 A: I may have had at the time. I'm
18 pretty sure I would have. I think my understanding is
19 that most Park staff are familiar with the procedure as
20 well.
21 Q: And -- well, I want to -- I want to
22 ask about that.
23 I take it that you believed that if the
24 occupiers were concerned about burial grounds in the Park
25 they shouldn't have occupied the Park, they should have

60

1 followed some process, right?
2 A: Yes.
3 Q: And do you know if anybody ever
4 advised them of the process that should be followed, in
5 the Government's view?
6 A: I'm not aware of that. I don't know.
7 Q: All right. Well --
8 A: I'm not saying it didn't happen, I'm
9 just saying I don't know.
10 Q: Right. And you, at the time, as the
11 Minister, you -- you were a Minister of the Crown, right?
12 That's your -- that's -- that's your --
13 A: Yes.
14 Q: -- official status, right?
15 A: Yes.
16 Q: You were a representative of the
17 Crown, right? And I -- and I --
18 COMMISSIONER SIDNEY LINDEN: I think
19 that's a matter on which I can take judicial notice. I'm
20 sorry, Mr. Klippenstein.
21 MR. MURRAY KLIPPENSTEIN: Yeah.
22 COMMISSIONER SIDNEY LINDEN: I couldn't
23 help myself. I'm sorry.
24 MR. MURRAY KLIPPENSTEIN: Thank you.
25 Well, then I don't have to pursue that line of

61

1 questioning in great depth.
2
3 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
4 Q: If you could turn in the -- I think
5 it's a small blue binder of documents we prepared for
6 you.
7
8 (BRIEF PAUSE)
9
10 COMMISSIONER SIDNEY LINDEN: Excuse me.
11
12 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
13 Q: And at Tab 7 of that binder we have a
14 memo dated September 14th, 1995, which is Exhibit P-822.
15 And I've just included a few pages of that
16 exhibit, but for now I'm interested in the third page of
17 that collection which is dated at the top August 17th,
18 1937, and which appears to be a letter from a Mr.
19 MacIness to W. C. Cain who I believe was the Ontario
20 Minister of Lands and Forests or Deputy Minister of Lands
21 and Forests at that time.
22 And this a transcription of the letter
23 that was delivered to the Province on September 16th to
24 the Federal Minister of Indian Affairs referring to
25 burial grounds allegedly in the Park.

62

1 Now, I -- I gather you know what I'm
2 talking about in that regard?
3 A: Yes, I do.
4 Q: Yeah. And do you remember at that
5 time, in other words in September of 1995, actually
6 reading that letter?
7 A: I can't recall the specifics on
8 that. I know that we were aware of it.
9 Q: All right. It's just three (3) short
10 paragraphs. And if I could go through these with you it
11 says:
12 "To W.C. Cain. Connection with the
13 work at present being carried out under
14 the direction of your department at
15 Ipperwash beach near Sarnia. I have to
16 inform you that the Indians of the
17 Kettle of Stoney Point Band are much
18 concerned in the preservation of the
19 old Indian cemetery which I understand
20 is located within the boundary now
21 being developed as a park.
22 On the 13th of this month the Council
23 of the Kettle and Stoney Point Bands
24 passed a resolution requesting this
25 department to bring the matter to your

63

1 attention with the view to having this
2 old Indian burial ground preserved
3 intact and properly fenced.
4 Your request [I think that should be
5 "their request"] will, I'm assured,
6 appear to you as entirely reasonably
7 and I should be glad if you would see
8 that the necessary action is taken with
9 the view to meeting the wishes of the
10 Indians."
11 And the next page shows the transcription
12 of the reply from Cain, representing the Province at the
13 time, which simply says -- do you see the one (1)
14 paragraph reply?
15 A: Yes.
16 Q: Saying:
17 "Not having before me all the facts in
18 connection with the location of this
19 area, in relation to the program of
20 works being carried out, I cannot speak
21 definitively [definitely, rather] on
22 the matter except to say that I shall
23 do my best to make such arrangements as
24 will respect the natural which --
25 wishes of the Indians."

64

1 And then the -- the final sentence on the
2 note says:
3 "Nothing else on file about this."
4 Do you see that?
5 A: Yes.
6 Q: Now, do you recall when you received
7 these documents, or copies of them, from the Federal
8 Government in September of 1995, whether you or your
9 department did any further research to see whether, in
10 fact, these 1937 letters about the burial grounds
11 allegedly in the Park had been followed up on at that
12 time, do you know?
13 A: I believe that was the case.
14 Q: Okay. And did you -- are you aware
15 of any evidence that, back in 1937, the Province had
16 actually followed up on this request in any way?
17 A: I do recall that Ron Vrancart
18 instructed his staff I believe, to do research into this
19 issue.
20 Q: And we've heard -- despite all the
21 evidence in this Hearing, we've not seen any evidence
22 that for example, Mr. Cain wrote any letters to anybody
23 and followup to this.
24 Do you recall whether you saw anything
25 like that or were anything reported to you?

65

1 A: I can't recall the specifics.
2 Q: Okay. And we haven't seen any
3 evidence in this Inquiry that anybody received a phone
4 call or letter or anything from Mr. Cain or anybody else
5 suggesting any action in followup to this 1937 letter.
6 And indeed to -- to my knowledge there's
7 no evidence here in this Inquiry that Mr. Cain or the
8 Province did anything at all, didn't make a phone call,
9 didn't make a letter, didn't take a single step to
10 followup on this.
11 There's no evidence of that. Now do you -
12 - I take it you don't have evidence or knowledge that
13 there was any followup in any way, shape or form?
14 A: I didn't know Mr. Cain, no.
15 Q: No. Now my question to you relates
16 to what the trespassers did in occupying -- trespassers,
17 now I've used the term. This the -- shows the -- shows
18 the insidiousness, if I may, of the use of the term.
19 But the occupiers --
20 COMMISSIONER SIDNEY LINDEN: Tsk, tsk.
21
22 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
23 Q: Yeah, tsk. The --
24 A: And that wasn't even before a press
25 scrum.

66

1 Q: I'm sorry.
2 A: And that wasn't even before a press
3 scrum.
4 Q: Yes. Now, you've suggested, I take
5 it, that the -- the First Nations people who had
6 expressed concern about a burial ground and occupied the
7 Park, should have followed some process.
8 Now, would you agree with me that having
9 once -- that -- that for First Nations people, having
10 once approached the senior official of the Province on
11 the burial grounds issue and having had no response, that
12 a certain degree of frustration on the part of First
13 Nations people concerned about the burial ground, is --
14 is a predictable response?
15 A: I'm sorry?
16 Q: Would you agree that, for First
17 Nations people having petitioned for protection of the
18 burial ground to senior officials and not having any
19 response at all, that a degree of frustration is
20 predictable and understandable on the issue?
21 A: I don't -- I don't know if I'd
22 qualify it. So, you're suggesting that the 1937 letter
23 was written and so he wouldn't write it again or he
24 wouldn't talk to anybody until 1995?
25 Q: Well --

67

1 A: They wouldn't even do it then?
2 Q: No. I'm going to ask more questions
3 about that. But my question is: Having asked for
4 protection from the Province once and not getting --
5 haven't got -- and not having gotten anything a certain
6 amount of frustration --
7 A: Oh, I --
8 Q: -- is -- is predictable and
9 understandable; that's fair isn't it?
10 A: Well, I -- I could see it wouldn't be
11 helpful.
12 Q: Yes.
13 A: It would add to --
14 Q: Yes.
15 A: -- a level that if people don't do
16 what they're supposed to do in a timely fashion, that
17 could lead to frustration.
18 Q: Yes. Now unfortunately, I guess, the
19 -- the issue of burial grounds comes up again, this time
20 in 1950. And if you could turn to -- in the same binder,
21 Tab 15, which is Exhibit P-908A, we have, actually, a
22 photograph of part of the skeleton and of the skull that
23 was found in the Park in 1950.
24 And if you turn up to the previous tab at
25 Exhibit P-909, we have a memo by a researcher, apparently

68

1 related to that skull that was found -- and skeleton,
2 partial skeleton that was found in the Park.
3 And is based on, in part, interview -- an
4 interview conducted with Marilyn Dulmage -- or Dulmage in
5 1996, recounting when her father, Arnold Dale was the
6 Park Superintendent of Ipperwash, during the period 1947
7 to 1955.
8 And she says, according to this memo, that
9 she remembers that a bulldozer was levelling part of the
10 Park for construction of the bathhouse and during the
11 work period there was a big blow and a skeleton appeared
12 in the sand.
13 And she says that, according to the
14 recollections of this -- the daughter of the
15 Superintendent, Arnold Dale, took the skull and kept it
16 on his desk for several months.
17 And furthermore, she recalls that the
18 local lore states that during the construction of the
19 water reservoir in the 1940's, truckloads of bones were
20 removed from the sand hill where the reservoir is built.
21 Now, when this information was collected,
22 in around 1996, the fall of '96, do you recall being
23 advised of the results of this research on the 1950
24 remains being found in the Park?
25 A: In a general way, yes.

69

1 Q: So you think --
2 A: I can't recall the specifics.
3 Q: You think you were -- you were
4 advised in a general way?
5 A: I would assume that.
6 Q: All right.
7 A: Yes.
8 Q: And so these -- this skull and
9 partial skeleton that was found in the Park uncovered, I
10 gather, partially as a result of some bulldozing
11 operations, according to the daughter of the Park
12 superintendent, the skull sat on the superintendent's
13 desk for several months.
14 And we've heard no evidence that anybody
15 in the surrounding First Nations was ever advised that
16 there had been a skeleton found at the time. There's no
17 evidence of that.
18 Now, would you agree with me that in the
19 situation of finding a -- a skeleton and skull in that
20 fashion, that it was inappropriate, perhaps only in
21 hindsight or perhaps in hindsight, it was inappropriate
22 for the skull to be treated that way and for the First
23 Nations people not to be advised of this?
24 Would you agree that's -- that was
25 inappropriate?

70

1 A: Just to be clear, I was never aware
2 of either one of those details.
3 Q: All right.
4 A: On the surface of it, yes, I would
5 agree with you.
6 Q: And would you agree with me that,
7 obviously we are looking at it in hindsight now but that
8 -- that appears to indicate treatment of -- of this
9 apparent Native skeleton as being of a different and
10 inferior sort of person?
11 Isn't that a fair characterization of that
12 kind of treatment?
13 A: Well I wasn't privy to those -- that
14 level of detail. If all your assumptions are correct, I
15 would agree.
16 Q: All right. And would you agree with
17 me that, and obviously you weren't there and had nothing
18 to do with this, but that the representatives of the
19 Crown failed to act appropriately in dealing with this
20 apparent Native burial site?
21 A: Well, on today's standards I would
22 agree, yes.
23 Q: Yes. And if -- if the standards were
24 different at that time, would you agree with -- and --
25 and the treatment of this sort of skull and skeleton in

71

1 that kind of way and the failure to -- to advise the
2 First Nations people, that shows a bit of a problem with
3 the standards of treatment of First Nations remains at
4 that time?
5 Would you agree with that?
6 A: I don't know what the standards were
7 at that time.
8 Q: Right, but whatever --
9 A: What you're describing --
10 Q: Yes.
11 A: -- I would -- I would agree that --
12 today, hopefully, you know, we'd do a better job.
13 Q: Right. And there's no evidence, as I
14 say, that any First Nations people were told about this
15 skull, the discovery, and how it was treated. Indeed the
16 -- the memo Exhibit P-909, again, says:
17 "Arnold Dale took the skull and kept it
18 on his desk for several months,
19 according to Mrs. Dulmage. She thinks
20 that the remains of the skeleton were
21 abandoned."
22 Again, the -- would you agree with me
23 that, in terms of the process to be followed in dealing
24 with the discovery of human remains, that certainly isn't
25 a proper process followed by the Crown representatives at

1 was not aware of these pictures you've shown me or the
2 skeletal remains. I was aware, in a general sense, that
3 there was a -- a series of incidents that may indicate
4 that there could possibly be a grave site.
5
6 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
7 Q: And would you agree with -- I just --
8 COMMISSIONER SIDNEY LINDEN: Yes.
9 MR. MURRAY KLIPPENSTEIN: -- I understand
10 that --
11 COMMISSIONER SIDNEY LINDEN: Yes.
12
13 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
14 Q: -- it may be break time, but would
15 you agree with me, Mr. Hodgson, that in 1996, if this
16 information had been brought to your attention, and by
17 that I mean, the discovery of this particular skeleton
18 with these photographs, the skull being kept on a desk
19 and the rest of the skeleton being abandoned, you would
20 have had a better appreciation of the possible
21 frustration of the First Nations people who occupied the
22 Park; is that fair?
23 A: It would have reinforced my belief
24 that there should be a process followed to determine if
25 there -- the location of the grave site, if there's a --

74

1 a grave site there, and that would have reinforced that.
2 But I think there should be an investigation into that.
3 Q: And would you agree that, similarly,
4 it would reinforce someone's reasonable conclusion that
5 the -- the Crown's representatives had not followed a
6 process in 1950?
7 A: I wouldn't --
8 COMMISSIONER SIDNEY LINDEN: I don't see
9 how he can say that.
10 MR. PETER LAUWERS: With respect to My
11 Friend there's no evidence that his Clients knew anything
12 about this situation.
13 COMMISSIONER SIDNEY LINDEN: Yes.
14 MR. PETER LAUWERS: So it's hard to say
15 they took it into account in any of the events that are
16 surrounding this particular Inquiry.
17 COMMISSIONER SIDNEY LINDEN: That's fine.
18 MR. MURRAY KLIPPENSTEIN: I have some
19 further questions but if -- if this is the appropriate --
20 COMMISSIONER SIDNEY LINDEN: On this
21 point?
22 MR. MURRAY KLIPPENSTEIN: Yes, if this is
23 a --
24 COMMISSIONER SIDNEY LINDEN: Would you
25 like to finish this point. Maybe you should.

75

1 MR. MURRAY KLIPPENSTEIN: Perhaps I'll --
2 I'll try and be brief on that, yes.
3 COMMISSIONER SIDNEY LINDEN: That's fine.
4
5 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
6 Q: Well, I -- would you concede, Mr.
7 Hodgson, that when you say that you think the First
8 Nations people concerned about burial grounds should
9 follow an appropriate process, the same would apply to
10 the Crown; is that fair?
11 A: They -- they both have to follow the
12 rules, whatever those rules are, that are set out.
13 There's processes to address these issues.
14 Q: And would you agree with me that it
15 appears that in 1950 the Crown didn't follow the rules
16 with respect to this --
17 COMMISSIONER SIDNEY LINDEN: That's --
18 MS. SUSAN VELLA: Well, that's -- that's
19 -- that's very --
20 COMMISSIONER SIDNEY LINDEN: That's a
21 question that I don't think he can answer.
22 MS. SUSAN VELLA: He can't answer this
23 question because he's indicated the Minister has -- that
24 he didn't know what the rules were --
25 COMMISSIONER SIDNEY LINDEN: He didn't

76

1 know what the rules were.
2 MS. SUSAN VELLA: -- in place in 1950.
3
4 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
5 Q: Were you aware in -- around 1996 when
6 the issue of burial -- of a skeleton being found in the
7 Park was raised, generally, as I -- as I recall you
8 saying, whether there was any Inquiry into the process
9 followed by the Crown representatives at that time with
10 respect to the burial ground?
11 A: No, there was not, and it was never
12 referred to me as a skeleton. It was other indicators
13 that there may be a grave site there.
14 Q: All right. And would you agree with
15 me that it is reasonable for, and understandable for a
16 First Nations person, who is accused of not following the
17 rules of dealing with a burial site, and instead
18 occupying the Park, to feel frustration at the way the
19 1950 burial was handled by the Crown?
20 OBJ MS. SUSAN VELLA: Well, I have an
21 objection. My objection is that I don't believe there's
22 any evidence before this Inquiry that suggests that the
23 occupiers had any knowledge about the -- the 1950 skull
24 at the time of their occupation.
25 I think that Mr. Klippenstein has already

77

1 put that on the record that there has been no such
2 evidence before this Inquiry, so how -- I don't see the
3 relevance of this question.
4 COMMISSIONER SIDNEY LINDEN: That's fine.
5 I think that's right.
6 MR. MURRAY KLIPPENSTEIN: I don't mean to
7 go on before the break, but the -- the evidence has been,
8 certainly, that the First Nations people occupying the
9 Park were asserting and had for a long time, been a
10 burial -- asserting a burial ground and were frustrated
11 at the way it was -- was or was not being -- so the
12 general frustration was there -- was there, was stated.
13 COMMISSIONER SIDNEY LINDEN: But there's
14 no evidence regarding what that was based on. In other
15 words, some of the information that you're now leading
16 was not available at that time.
17 MR. MURRAY KLIPPENSTEIN: But -- but my
18 point in proceeding with this is that there was a general
19 frustration --
20 COMMISSIONER SIDNEY LINDEN: Yes.
21 MR. MURRAY KLIPPENSTEIN: -- that relates
22 back to a series of events and that -- that it is -- it
23 is a similar frustration. That's my only -- by that I
24 mean the frustration about the oral tradition of burial
25 grounds not being respected.

78

1 COMMISSIONER SIDNEY LINDEN: I'm not sure
2 where you're going, but I think you've got enough
3 information to make, once again --
4 MR. MURRAY KLIPPENSTEIN: All right.
5 COMMISSIONER SIDNEY LINDEN: -- to make
6 your argument.
7 MR. MURRAY KLIPPENSTEIN: Well --
8 COMMISSIONER SIDNEY LINDEN: I don't
9 want --
10 MR. MURRAY KLIPPENSTEIN: I have some
11 further questions about burial grounds related to a
12 different time period, but I will -- perhaps this is a
13 good time to take the break.
14 MR. MURRAY KLIPPENSTEIN: We'll take a
15 break now then.
16 THE REGISTRAR: This Inquiry will recess
17 for fifteen (15) minutes.
18
19 --- Upon recessing at 10:18 a.m.
20 --- Upon resuming at 10:41 a.m.
21
22 THE REGISTRAR: This Inquiry is now
23 resumed. Please be seated.
24 MR. DERRY MILLAR: Commissioner, before
25 we begin, I wanted to just alert all the parties as to

79

1 the present state of the scheduling.
2 We have Mr. Hodgson, who will be finished
3 this week, and then followed by Mr. Beaubien. I -- we
4 had originally intended to then call Mr. Harris.
5 Mr. Harris had set up his schedule to be
6 here this week and next week, and he, unfortunately,
7 cannot be here the week of the 6th because he has
8 commitments outside the -- outside the Province and he
9 arranged his schedule based on the fact that he thought
10 he would be here this week and next week.
11 I'm -- he can be here on February 14th and
12 -- but I'm still waiting to hear back about February
13 13th, which is actually the Monday.
14 The complication that we then have is to
15 find a witness for the week of February 6th --
16 COMMISSIONER SIDNEY LINDEN: Just before
17 you go there, Mr. Millar. If he comes on the 13th or the
18 14th, he would be available continuously until his
19 evidence is complete?
20 MR. DERRY MILLAR: Well, that's what
21 I'm --
22 COMMISSIONER SIDNEY LINDEN: That's not
23 the plan?
24 MR. DERRY MILLAR: That's the plan --
25 COMMISSIONER SIDNEY LINDEN: Okay.

80

1 MR. DERRY MILLAR: That's what I'm trying
2 to find out. That's the plan.
3 COMMISSIONER SIDNEY LINDEN: Okay.
4 MR. DERRY MILLAR: Because I would like
5 to call him and finish him, in terms of his evidence.
6 And the -- the difficulty that we have and -- we had
7 originally indicated that we were going to call Mr.
8 Wright, Inspector Wright, after Mr. Harris.
9 It appears prudent that we -- to
10 substitute Mr. -- Inspe -- Superintendent Parkin, because
11 I believe Superintendent Parkin will be shorter than Mr.
12 -- Inspector Wright and so that we would call
13 Superintendent Parkin on February the 6th. And then -- I
14 don't believe that Superintendent Parkin should take the
15 whole week.
16 And if we had some time available subject
17 to -- I haven't spoken to Ms. Twohig about this. We were
18 working on getting Mr. McCabe back for next week. But it
19 might be easier to deal with Mr. McCabe the week of
20 February 6th.
21 But I just wanted to bring all the parties
22 up to date and where we're at with the schedule.
23 COMMISSIONER SIDNEY LINDEN: And that
24 would mean Inspector Wright would then be called after
25 Mr. Harris?

81

1 MR. DERRY MILLAR: After Mr. Harris.
2 COMMISSIONER SIDNEY LINDEN: After Mr.
3 Harris. Well, all we could do is the best you can which
4 you've always done.
5 MR. DERRY MILLAR: Thank you.
6 COMMISSIONER SIDNEY LINDEN: And just
7 keep us informed as these things follow into place.
8 Thank you.
9 MR. DERRY MILLAR: Yeah, I'm -- I'm --
10 that's why I wanted to let everybody know.
11 COMMISSIONER SIDNEY LINDEN: Thank you.
12 Carry on, Mr. Klippenstein.
13 MR. MURRAY KLIPPENSTEIN: Thank you,
14 Commissioner.
15 COMMISSIONER SIDNEY LINDEN: By the way,
16 I'm just going to ask if you could make a reasonable
17 estimate now as to how much longer you might have.
18 MR. MURRAY KLIPPENSTEIN: Yes. I expect
19 to be done in an hour, which I think to be within my
20 original estimate of four (4) to five (5) hours.
21 COMMISSIONER SIDNEY LINDEN: Thank you.
22
23 CONTINUED BY MR. MURRAY KLIPPENSTEIN
24 Q: Mr. Hodgson, before the break I was
25 reviewing with you the way Crown representatives handled

82

1 the burial ground and the Park issue in 1937 and then
2 again in 1950.
3 And I would like to now look at an issue
4 involving burial grounds in the Park from 1975. If you
5 could -- in the -- the blue binder we provided you, turn
6 to Tab 7 which is what we were looking at before.
7 COMMISSIONER SIDNEY LINDEN: In the blue
8 binder. What tab is this?
9 MR. MURRAY KLIPPENSTEIN: That's Tab 7.
10 COMMISSIONER SIDNEY LINDEN: 7.
11
12 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
13 Q: And that's -- that's headed Daryl
14 Smith Information Services Co-Ordinator. Do you see
15 that?
16 A: Tab 7? Yes.
17 Q: The -- the memo that's the first page
18 of that package, which is Exhibit P-822, appears to be a
19 memo from Daryl Smith, Information Services Co-ordinator,
20 Ministry of Natural Resources, dated September 14th,
21 1995.
22 And the memo says:
23 "The attached is a collection of
24 historical notes I found in my files
25 relating to the beginnings of Ipperwash

83

1 Provincial Park.
2 On January the 16th, 1975 I found these
3 in the third basement of Whitney
4 block."
5 And then dropping down:
6 "Pay particular attention to the notes
7 respecting Indians, problems with
8 Indians and the burial ground
9 situation."
10 And if you turn the page you see a copy of
11 a letter dated January 16th, 1975 where it's entitled, "A
12 Memorandum to Superintendent Ipperwash from Chatham
13 District Office," and it says:
14 "You will recall that I mentioned that
15 I would attempt to look up old
16 Ipperwash records in the Provincial
17 Archives. I have recently perused
18 several Ipperwash record files and
19 attached copies rather interesting
20 information.
21 This is simply dictated correspondence
22 which we typed at this office."
23 And it's from D.R. Fortner, District
24 Manager Chatham, but I see the initials are DCS which may
25 well be Daryl Smith.

84

1 Anyway, this appears to suggest that the
2 correspondence from 1937, related to burial grounds in
3 the Park, was discovered in the Government Archives at
4 Whitney Block in January of 1975 and was in the knowledge
5 of Daryl Smith and, apparently, the district manager at
6 Chatham.
7 Were you aware that the information from
8 1937, about burial grounds in the Park, was apparently
9 within the knowledge of several MNR employees, back in
10 1975?
11 A: I believe my recollection is that
12 they found this in the archives after September 6th or --
13 in 1995.
14 Q: All right. I'm sorry, your last
15 comment about -- oh, 1995?
16 A: Yes.
17 Q: Now, looking at these couple of
18 pages, they appear to say that the 1937 letters dealing
19 with burial grounds had, in fact, been discovered or were
20 within the knowledge of, at least, Daryl Smith of MNR and
21 D.R. Fortner of MNR, back in 1975.
22 Were you aware that there's some evidence
23 that MNR employees were aware of the 1937 correspondence
24 as early as 1975?
25 A: No.

85

1 Q: Okay. So had any -- has anybody ever
2 advised you that, apparently, burial ground information
3 was within MNR employees knowledge in 1975?
4 A: Not specifically. My information is
5 that in '96 on the -- when they were trying to find out
6 information, that they came across some past records and
7 I believe this would be what my briefing would have
8 referred to.
9 Q: Right. Now, there's no evidence at
10 all that in 1975, twenty (20) years before 1995, when
11 this information about alleged burial grounds in the Park
12 was handled by MNR employees, that they did anything with
13 it.
14 In other words, there's no evidence that
15 the First Nation was advised of this potential burial
16 ground information.
17 Would you agree with me that, in 1975,
18 when these documents came within the knowledge of some
19 MNR employees, probably the First Nations should have
20 been advised of this; is that fair?
21 A: I don't know what they did in 1975.
22 Q: Right. There's no evidence that they
23 advised the First Nation of it. Would you agree with me
24 that they should have done that?
25 A: I don't know if there is evidence or

86

1 there isn't evidence. I'm just taking your word for it.
2 Q: Right. Based on that assumption,
3 which -- which is the state of evidence at the Inquiry
4 here, would you agree with me that, assuming they didn't
5 advise the First Nation --
6 A: They should have followed the rules,
7 whatever they were at that time. I'm not familiar with
8 those rules at that time.
9 Q: All right. And sitting here today,
10 applying today's standards, for starters, in hindsight
11 they should have advised the First Nation of this in
12 1975; is that fair?
13 OBJ MS. SUSAN VELLA: I have an objection
14 with the form -- objection with the form of the question.
15 My Friend, I believe, has asked Mr. Hodgson to apply
16 today's standards in hindsight to what did or didn't
17 occur in '75.
18 COMMISSIONER SIDNEY LINDEN: What are
19 you --
20 MR. MURRAY KLIPPENSTEIN: All right.
21 I'll withdraw the question.
22 COMMISSIONER SIDNEY LINDEN: Thank you.
23
24 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
25 Q: Mr. Hodgson, you said you didn't know

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1 what the rules were in 1975. Wouldn't you agree with me
2 that whatever standards you may want to apply, when
3 there's -- when there's information, like these 1937
4 letters, coming into the knowledge of fairly senior MNR
5 employees, they just should have provided that
6 information to the First Nation?
7 Aside from whatever detail --
8 A: You're asking me my own personal
9 opinion?
10 Q: Yes.
11 A: I would have.
12 Q: Yes. And isn't it pretty much a
13 basic respectful human thing to do in the case of a
14 burial ground?
15 A: It might just be my opinion, yeah.
16 Q: Yeah, okay. And then turning to the
17 first page of Exhibit P-822, which is the memo of
18 September 14th, 1995.
19 A: I'm sorry, which -- which tab are you
20 on?
21 Q: This is now the same tab, Tab 7.
22 A: Same --
23 Q: The first --
24 A: Same binder, Tab 7?
25 Q: Yes, Tab 7, first page of that.

88

1 A: Okay.
2 Q: And I'm now looking at the memo from
3 Daryl Smith dated September 14th, 1995. Well -- that is
4 a memo in which Daryl Smith says that he found these 1937
5 letters back in January 16th, 1975.
6 That memo of September 14th,'95 is headed
7 as going to a number of employees including Dan Elliott,
8 Ron Baldwin, Peter Sturdy, Les Kobayashi, Ed Vervoort,
9 and one (1) other person. Now, those five (5) names that
10 I've just read out to you were -- plus Mr. Daryl Smith --
11 were all very much involved in the handling of the
12 events at Ipperwash Park on September 4th, 1995, and on.
13 There's no evidence that any of these
14 people provided that -- provided to anyone outside of the
15 Province -- Provincial Government, the knowledge that
16 these letters were found in 1975. In other words, the
17 fact that these letters were known in 1975 was never
18 disclosed by any of these people who were involved.
19 Would you agree with me that it would have
20 been better for the Provincial Government to say -- to
21 come clean and say, We're sorry, we knew about this in
22 1975?
23 A: I only know what I know. I don't
24 know what they know.
25 Q: Right. I'm -- I'm now asking your

89

1 assessment as the then Minister of Natural Resources, and
2 I assume for purposes of my question you didn't know
3 this, but my question is: Given that five (5) or six (6)
4 very involved MNR employees knew, as of September 14th
5 apparently in 1995, that this burial ground information
6 had surfaced in 1975 and didn't tell anybody outside,
7 would you agree with me it would have been better if they
8 had disclosed that?
9 A: Well, I disagree with your premise.
10 On September 14th, this was around the time that Ron
11 Irwin had released these letters, Ron Vrancart had asked
12 for, my understanding, an historical research be done. I
13 think the information came forward as a result of that
14 and I believe they shared that with -- with others.
15 I was aware of it at that time and our
16 belief was that if there's a possibility of a grave site
17 existing that they should be examined and explored and
18 identified and all the proper procedures be followed.
19 Q: Fair enough. My question was -- was
20 on a slightly different point. And my question relates
21 to the fact, apparently, that no one revealed for some
22 ten (10) years that in September of '95 the Province
23 realized that it had known about burial grounds in 1975.
24 Nobody said, Actually we've known about
25 this in the files for twenty (20) years. Nobody said

90

1 that for ten (10) years.
2 Would you agree with me it would have been
3 better, it's a matter of dealing fairly with this issue,
4 for the Province to admit that it had come up again in
5 1975?
6 A: I'm not aware that that was ever kept
7 from anybody. I thought that this information was
8 shared.
9 Q: All right. I'll move on. I've --
10 I've taken you, Mr. Hodgson, through three (3) or four
11 (4) time periods and I just want to ask about -- mention
12 the -- the first three (3).
13 And I've looked at the handling by the
14 Province, by the Crown, of burial ground issues in
15 Ipperwash Park in 1937, in 1950, and in 1975, and I would
16 suggest to you it's fair to say based on what we've seen
17 that the Province didn't handle it properly on those
18 three (3) occasions; is that fair?
19 A: I can't draw that conclusion. I
20 stated earlier I'm not aware of the rules back in the
21 past time periods.
22 Q: And -- and having seen how the
23 Province handled it you feel you're not in a position to
24 say it wasn't handered -- handled right?
25 A: I don't know what the rules were back

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1 in 1937 or 1950.
2 Q: All right.
3
4 (BRIEF PAUSE)
5
6 Q: If you could turn please, to the
7 binder from the Commission Counsel of -- of documents
8 that we've looked at a number of times, and turn to Tab
9 25 which is the handwritten notes of Julie Jai for the
10 IMC meetings of September 5th and 6th, 1995, Inquiry
11 Document 1012579.
12 MS. SUSAN VELLA: It's Exhibit P-536.
13 MR. MURRAY KLIPPENSTEIN: Thank you.
14 Exhibit P-536. Thank you, Ms. Vella.
15
16 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
17 Q: And in that tab if you could turn
18 into the fifth page.
19 MS. SUSAN VELLA: Sorry, for
20 clarification, are these the September 6th minutes --
21 notes I should say?
22 MR. MURRAY KLIPPENSTEIN: Yeah.
23
24 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
25 Q: For clarification, these handwritten

92

1 notes are the notes of Julie Jai, taken at the September
2 6th IMC meeting. And I'm looking at handwritten page 3
3 at the top. Do you see that?
4 A: Yes.
5 Q: All right. And do you see the word
6 'Tim' near the top on the left.
7 A: I'm sorry. This is page 5?
8 MS. SUSAN VELLA: 3.
9
10 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
11 Q: It's handwritten page 3 at the top.
12 I'm sorry. It's the fifth page in --
13 A: Oh, okay.
14 Q: -- but I'm -- but the actual number
15 on the top, in handwriting, is page 3. Do you see that?
16 A: Where it says 'Tim', yes.
17 Q: Yes. And that half page, and I won't
18 go through it in detail, but it's something that I've
19 reviewed with a number of witnesses. And -- well,
20 perhaps I should out of completeness for your sake, just
21 go through a few sentences there because I'm going to ask
22 you about some of the information there.
23 I'll just start with the label of 'Tim' on
24 the left.
25 "Ministers can say instructions have

93

1 been given to AG to seek an injunction
2 ASAP.
3 Not a case for ex parte injunction.
4 Should give notice but we could go into
5 Court to seek an abridgement of the
6 three (3) days notice.
7 We are checking with Sarnia Court to
8 find out when a judge is available.
9 The other variable; getting our
10 material ready.
11 Need to establish this is Provincial
12 Crown land, title history, incidents in
13 Park, et cetera."
14 And then the next few lines is what I
15 would like to focus on. Tim apparently says:
16 "Best case, Friday in court."
17 Deb, which was Deb Hutton, says:
18 "Premier feels the longer they occupy
19 it the more support they'll get.
20 He wants them out in a day or two (2)."
21 Now, the reference to Deb Hutton saying:
22 "The Premier feels the longer they
23 occupy it, the more support they'll
24 get."
25 The -- is it -- is it your understanding -

94

1 - is that compatible with your understanding of the
2 Premier's -- part of the Premier's views, namely that he
3 felt the longer they would occupy it, the more support
4 they would get?
5 A: No.
6 Q: And --
7 A: I wasn't at this meeting though
8 either.
9 Q: No. I understand you weren't at this
10 meeting. But --
11 A: Is this the 5th?
12 Q: This is the 6th.
13 COMMISSIONER SIDNEY LINDEN: The 6th.
14 THE WITNESS: The 6th.
15
16 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
17 Q: Yeah. And this is the IMC meeting
18 occurring in the morning prior to the meeting in the
19 Premier's dining room.
20 A: Hmm hmm.
21 Q: Okay. And my question does -- is:
22 The statement here that the Premier feels "The longer
23 they occupy it, the more support they'll get", do you
24 have any views on whether that was your understanding of
25 the Premier's opinions?

95

1 A: No. I never heard that before that
2 there was a concern about the support.
3 Q: Okay.
4 A: Not at all.
5 Q: All right. Sorry, you'd never heard
6 -- you didn't hear that he was concerned about -- about
7 the occupiers getting more support?
8 A: Never.
9 Q: All right. Then I would like to --
10 well, first of all, there are quite a few note takers of
11 this meeting who refer to the Friday date. It apparently
12 left a pretty big impression and lots of note takers say,
13 Best case Friday.
14 And to my knowledge, there's no other
15 reference to any Friday in any of these notes. That's --
16 so that's the only reference to Friday.
17 Then I'd ask you to turn to the document
18 binder we prepared and turn to Tab 3. Sorry, a different
19 tab, Tab 2.
20
21 (BRIEF PAUSE)
22
23 Q: These are excerpts from Exhibit P-
24 426. And I want to ask you about something attributed to
25 an MNR employee. And at the very bottom of --

96

1 MS. SUSAN VELLA: I'm sorry, can you just
2 indicate what the document is, so that --
3 MR. MURRAY KLIPPENSTEIN: Yes.
4 MS. SUSAN VELLA: -- the Witness knows
5 what he's referring to.
6 MR. MURRAY KLIPPENSTEIN: Yes, I
7 apologize. Thank you -- thank you, Ms. Vella.
8
9 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
10 Q: These are the typed version of the
11 scribe note log kept by the OPP of what happened in the
12 command post at Ipperwash during this period.
13 So the time's on the left, in the margin,
14 are the time of day. And the notes on the right are the
15 OPP scribe record of what was happening.
16 MS. SUSAN VELLA: And the dates?
17 THE WITNESS: Which day is this?
18
19 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
20 Q: And -- and the date of this excerpt
21 is September 6th, 1995 and the time reference that I'd
22 like to refer you to is on the second page of that
23 excerpt, which at the top right is labelled 62.
24 Do you see that?
25 A: Yes.

97

1 Q: And on the left hand side, there's a
2 notation of 14:27 hours, which is 2:27 in the afternoon,
3 on September -- on September 6th. Does that make -- do
4 you see that?
5 A: 14:27, yes.
6 Q: Yes. And then if you drop down to
7 the last paragraph on that page, just by way of
8 background, this is a command post meeting at the OPP
9 being held at the -- sometime after 2:27 in the
10 afternoon, and this last paragraph says:
11 "Mark Wright, there will be a leg
12 time."
13 I think that should be lag time. And from
14 the previous paragraph, I should say, there's a
15 discussion of the -- of the affidavit for the injunction,
16 so it's a discussion of the injunction happening in the
17 command post.
18 And so the last paragraph says:
19 "Mark Wright, there will be a lag time.
20 Second party has to have an opportunity
21 to attend. Ed Vervoort feels probably
22 will be Friday. Concerns raised that
23 the longer it goes, more may be
24 around."
25 I'd like to stop there. Now, I anticipate

98

1 we will hear evidence that Mr. Vervoort is referring to
2 the information in the notes of the IMC meeting that I
3 just referred you to, because the reference to Friday is
4 -- the only source for that is the reference in the notes
5 about possibly being in Court Friday, best case scenario,
6 and the next sentence:
7 "Concerns raised that the longer it
8 goes, more may be around."
9 Appears to be --
10 MR. PETER LAUWERS: Excuse me.
11 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
12 Lauwers?
13 MR. PETER LAUWERS: My Friend said there
14 was going to be evidence about this.
15 COMMISSIONER SIDNEY LINDEN: I'm not
16 sure.
17 MS. SUSAN VELLA: If the -- and I don't
18 know what the source of the anticipated evidence is; Mr.
19 Vervoort is not currently on the Commission Counsel
20 witness list, as I think everyone knows.
21 MR. MURRAY KLIPPENSTEIN: Well, I think
22 that, obviously, Mark Wright, who was there, will be
23 testifying and questioned about this and, if necessary,
24 we may ask to call Ed Vervoort as well.
25 There's certainly some other, in my

99

1 submission, important notes from Ed Vervoort with respect
2 to political pressure and references in the command post.
3 I don't prejudge whether he should be
4 called, but it's possible.
5 And so, you know, at this point it's --
6 COMMISSIONER SIDNEY LINDEN: So what
7 point are you making from these notes now?
8 MR. MURRAY KLIPPENSTEIN: The point I'm
9 just suggesting is that there -- there appears to be the
10 possibility that the --
11 COMMISSIONER SIDNEY LINDEN: That the
12 Friday referred to is the Friday mentioned in the --
13 MR. MURRAY KLIPPENSTEIN: Yes, and also
14 that the --
15 COMMISSIONER SIDNEY LINDEN: -- in those
16 notes.
17 MR. MURRAY KLIPPENSTEIN: -- sentence
18 about concerns raised, that the longer it goes more may
19 be around, may, in effect, be a transmittal through MNR
20 chain of information that was tabled in the IMC meeting
21 about the Premier's wishes.
22 So my -- my question relates to whether
23 Mr. Hodgson has concerns that it may be that the wishes
24 of the -- the opinions of the Premier --
25 COMMISSIONER SIDNEY LINDEN: Well --

100

1 MR. MURRAY KLIPPENSTEIN: -- expressed in
2 the IMC meeting are being transmitted to the OPP command
3 post by Mr. Vervoort.
4 COMMISSIONER SIDNEY LINDEN: Just before
5 you go on, just before you answer that.
6 Yes, Ms. McAleer?
7 OBJ MS. JENNIFER MCALEER: Mr. Commissioner,
8 I object to that question. This is a briefing at which a
9 number of parties are present. At least a number of
10 members from the OPP and possibly Mr. Vervoort.
11 There's no indication in the scribe notes
12 as to where that -- the source of that information is
13 coming and to put that question to this Witness is just
14 asking him to speculate --
15 COMMISSIONER SIDNEY LINDEN: Yes.
16 MS. JENNIFER MCALEER: -- at this point.
17 COMMISSIONER SIDNEY LINDEN: To put it as
18 if it were a fact, in other words.
19 Yes...?
20 MR. MURRAY KLIPPENSTEIN: Well, I -- I
21 think that, as I've -- as I've said, I mean Mr. Vervoort,
22 according to this evidence, appears to say that the
23 injunction will be Friday, which is the evidence of his
24 opinion in his report to the Command Post team.
25 And the notes suggest, we will hear

101

1 evidence on this, I guess from Mr. Wright, that the next
2 sentence also is Mr. Vervoort's report and I think the
3 appearance it will be, it is, that that can be the only
4 possible source for that evidence.
5 Now, we will -- may need to call Mr.
6 Vervoort or Mr. Wright, but right now we have the
7 comments of Ms. Hutton about the Premier's views in the
8 Command -- in the IMC meeting, including the discussion
9 of Friday in court. Then we have that seeming to
10 reappear in the Command Post here through the MNR chain.
11 And I just -- I just want to ask based
12 on --
13 COMMISSIONER SIDNEY LINDEN: Yes. Just
14 before you do I see Ms. Perschy's on her feet. Let's
15 hear from her.
16 OBJ MS. ANNA PERSCHY: Yes, Commissioner, I
17 also wanted to object. What My Friend has done has
18 referred to some notes with respect to a meeting that
19 this Witness was not in attendance at; they are notes,
20 they're not a transcript. I've raised that objection in
21 the past.
22 And now he's making reference to some --
23 to some anticipated evidence that he expects to hear.
24 It's not clear what that evidence is going to be. The
25 witnesses that he's referring to were not at the meeting

102

1 in Toronto, either, so I'm not quite sure how he's going
2 to make up all these links.
3 So, I have grave concerns and I -- and I
4 completely agree with the submissions of Jennifer
5 McAleer, that really this is calling for pure speculation
6 on the part of this Witness.
7 COMMISSIONER SIDNEY LINDEN: Yes. You
8 might be able to ask the question in a different way that
9 would make it clear what it is you're asking, but you're
10 putting matters to him as if they were facts or as if the
11 links were made and they haven't been.
12 MR. MURRAY KLIPPENSTEIN: Well, I -- I
13 recognize, Commissioner, that, you know, as -- as often
14 happens you can't have all the --
15 COMMISSIONER SIDNEY LINDEN: "I's" dotted
16 and "T's" crossed?
17 MR. MURRAY KLIPPENSTEIN: All the
18 evidence lined up at the --
19 COMMISSIONER SIDNEY LINDEN: Yes.
20 MR. MURRAY KLIPPENSTEIN: -- same time
21 while you -- and it's a question of which comes first the
22 chicken or the egg. And I -- the only purpose was to ask
23 Mr. Hodgson, as the Minister, whether he had some
24 concerns about this flow of information, but I -- I will
25 -- I will address it a different day and other witnesses.

103

1 COMMISSIONER SIDNEY LINDEN: Well, you
2 could ask the question in a different way, but if you're
3 moving on then --
4 MR. MURRAY KLIPPENSTEIN: Well, let me --
5 let me try one (1) more time to ask the question a
6 different way and I don't propose to spend too much time
7 on this -- on this particular...
8
9 (BRIEF PAUSE)
10
11 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
12 Q: Mr. Hodgson, if indeed information
13 from the IMC meeting, including information expressed by
14 Ms. Hutton about the Premier's views, was being passed
15 down the MNR chain into the MNR -- into the OPP Command
16 Post, would you agree that's a potential area of concern?
17 COMMISSIONER SIDNEY LINDEN: That's a
18 fair question. I think that's a fair question.
19 THE WITNESS: As I answered I wasn't at
20 the meeting. I don't recall that. It was never brought
21 to my attention through the MNR chain.
22 MR. MURRAY KLIPPENSTEIN: Right. But --
23 THE WITNESS: I have no opinion on...
24
25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:

104

1 Q: Well, my question was --
2 A: My assumption is that, if you're
3 talking about the timing of the injunction, that wouldn't
4 be coming through the MNR chain.
5 Q: No, the question is slightly
6 different, it relates to the concern about the longer
7 they're being there, the -- the more there may be around
8 and -- and the question of whether that -- that is
9 actually --
10 COMMISSIONER SIDNEY LINDEN: If --
11 MR. MURRAY KLIPPENSTEIN: -- essentially
12 the Premier's views being transmitted into the OPP
13 Command Post.
14 COMMISSIONER SIDNEY LINDEN: If that came
15 from that channel. If it came, would that --
16 MR. MURRAY KLIPPENSTEIN: That --
17 COMMISSIONER SIDNEY LINDEN: -- concern
18 you?
19 MR. MURRAY KLIPPENSTEIN: With that
20 proviso, yes.
21
22 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
23 Q: And so my question is: If that
24 information about the -- about the concern that the
25 longer it goes on the more it may be around, is, in fact,

105

1 a transmittal of the Premier's opinions from the IMC
2 meeting, and that was being transmitted in at the OPP
3 Command Post through MNR chains, would that not be a
4 matter of concern, in your view?
5 A: Hypothetically, yes, I would have
6 assumed that the IMC meeting, which is chaired and run by
7 ONAS, would have been in charge of communications out of
8 the IMC meeting.
9 Q: Okay. Thank you.
10
11 (BRIEF PAUSE)
12
13 Q: Now, Mr. Hodgson, I asked a number --
14 well, I didn't ask, I was beginning to review a document
15 with you yesterday and moved on to a different matter,
16 and that document was the treaty from 1827 that pertained
17 to the reserve lands, which later became Ipperwash Park.
18 Would you have found it useful in
19 September of 1995 and thereafter, in assessing the
20 overall situation of -- of the occupiers at the Park, if
21 -- useful as background, if you had been advised that
22 there had been a formal, written, specific agreement
23 relating to those lands in the last century between the
24 Crown and the Chippewa Nations, which specified with a
25 defined boundary that those lands, including the

106

1 Parklands would be First Nation lands in perpetuity?
2 Would you have found it useful to have
3 that kind of specific information in assessing the
4 situation?
5 A: The situation at the time, as I
6 mentioned, had been an ONAS issue all summer and that I
7 communicated one press conference and then it was back to
8 ONAS and the Attorney General's office.
9 The information that I relied on from my
10 deputy Minister and senior advisors was that the title
11 was clear; that if there were those kinds of issues and
12 every time we dealt with First Nations, we dealt with on
13 a case by case basis, legal departments reviewed the
14 treaties, any Aboriginal court decisions that may affect
15 Aboriginal rights were taken into consideration; that was
16 all part of the background before dealing with any issue.
17 My advice was that the title was clear.
18 If there was a concern around the title, the proper
19 process is to file a claim, have the issue heard before
20 the Courts.
21 After we heard about the burial site, or I
22 heard about the burial site, the view was that the end
23 does not justify the means, no matter -- the proper
24 process should be followed in a civil society, and all
25 steps would be taken to do the right thing.

107

1 Identify and locate the burial site and
2 make sure that we worked in co-operation with the First
3 Nations.
4 COMMISSIONER SIDNEY LINDEN: Well, can I
5 take it from that answer that the answer is "no"?
6 THE WITNESS: The answer is "no."
7 COMMISSIONER SIDNEY LINDEN: Yes, that's
8 fine.
9
10 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
11 Q: And your answer is no, namely this
12 information, this information about the treaty agreement
13 wouldn't have been useful to you because, in your view,
14 it was -- that information and material was being handled
15 by others, namely the AG and ONAS, not by your
16 department.
17 Is that fair?
18 A: That's part of it, but more
19 importantly, if there was a dispute on title, then the
20 proper process is to go through the Courts, in my
21 opinion; file a claim.
22 The letter I received from the Federal
23 Government stated the same thing.
24 COMMISSIONER SIDNEY LINDEN: The evidence
25 that I heard on another occasion was that he relied on

108

1 the legal opinions --
2 MR. MURRAY KLIPPENSTEIN: Yes.
3 COMMISSIONER SIDNEY LINDEN: -- that he
4 was given.
5 MR. MURRAY KLIPPENSTEIN: Yes.
6
7 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
8 Q: And now the -- the government of
9 Ontario, including your Ministry, did in fact go to Court
10 on the morning of September 7th with an injunction
11 application, is that fair?
12 I mean, obviously, right?
13 A: I wouldn't word it that way. I
14 thought the Attorney General went to -- department went
15 to Court.
16 Q: All right.
17 A: With some support from MNR staff.
18 Q: All right, if you could, in the same
19 binder, turn to Tab 15.
20
21 (BRIEF PAUSE)
22
23 A: The same binder, this small, blue
24 one?
25 Q: Yes.

109

1 MS. SUSAN VELLA: This is the pictures of
2 the skull.
3
4 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
5 Q: I'm sorry the large -- the large
6 white one.
7
8 (BRIEF PAUSE)
9
10 Q: Turn to Tab 15.
11 A: Yes.
12 Q: Which is the motion record or the
13 court materials in writing submitted to the court on or
14 about September 6th for the motion to have the Park
15 occupiers enjoined or ordered to leave. And --
16 A: Is this the one that reads, "The
17 Attorney General for the Province of Ontario?"
18 Q: Yes. And the Minister of Natural
19 Resources.
20 A: Yes.
21 Q: Do you see that?
22 A: Yeah.
23 Q: So --
24 MS. SUSAN VELLA: I'm sorry, it's Exhibit
25 P-551.

110

1 MR. MURRAY KLIPPENSTEIN: Thank you.
2 Thank you very much, Ms. Vella.
3
4 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
5 Q: So this is the motion record or court
6 document filed and -- and obviously it appears to list
7 the Minister of Natural Resources as one of the
8 Plaintiffs, right?
9 A: Hmm hmm.
10 Q: So the court application was -- was
11 certainly proceeding partly in your name.
12 Is that right?
13 A: I was one of the ones mentioned.
14 Where do you see that?
15 Q: I see that near the top of the first
16 page, the cover page where it says "Ontario Court,
17 General Division, between..."
18 Do you see that?
19 A: Okay.
20 Q: "...the Attorney for the Province of
21 Ontario and the Minister of Natural
22 Resources, Plaintiffs."
23 Do you see that?
24 A: Yes.
25 Q: So at least on its face or on paper,

111

1 you as the Minister of Natural Resources were one of the
2 Plaintiffs, is that right?
3 A: Natural Resources held title to the
4 land.
5 Q: Right.
6 A: Yes.
7 Q: Well if -- if I may -- just for
8 clarification, if you could -- if you take note that on
9 the top right hand corners of the various pages, there's
10 handwritten page numbering. Do you see that?
11 A: Yes.
12 Q: If you could turn to page 45 in the
13 handwriting at the top right? It says "This Indenture";
14 do you see that?
15 A: Okay.
16 Q: And this is part of the paperwork, if
17 you will, for the legal title claim of the Province for
18 the Park lands. And this is from 1936 and you were a
19 former real estate agent, you may partially recognize
20 some of this.
21 But the transfer between William J. Scott
22 and then the second person or body stated there is:
23 "His Majesty The King as represented by
24 the Minister of Lands and Forests for
25 the Province of Ontario here and after

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1 called the Grantee."
2 Right? Do you see this?
3 A: Yeah.
4 Q: So I don't meant to be technical or
5 legalistic but does it accord with your level of
6 knowledge that the -- it appears the title legally was
7 held by the King or the Crown or the Queen as represented
8 by the appropriate Minister. Is that --
9 A: I've answered that that was my
10 understanding based on the legal advice I received from--
11 Q: Right.
12 A: -- the Ministry staff.
13 Q: Right. In any event the -- if you
14 turn to the third page - fourth page of the Motion Record
15 which is -- by that I mean the fourth piece of paper
16 itself -- it doesn't have a page number.
17 But it says two-thirds (2/3's) of the way
18 down, "Notice of Motion Without Notice"; do you see?
19 A: No. Which -- which page are you on?
20 Handwritten notes.
21 Q: This is -- the page -- well let me
22 take a step back. This is at Tab 15.
23 A: Yes.
24 Q: And if you flip four (4) pages in.
25 A: At Tab 15. So which -- which is the

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1 number at the top?
2 Q: There's no number at top right of
3 page numbering on that particular page. At the top right
4 it says, "Court File Number".
5 I think you've gone too far. Perhaps, if
6 you go back to the first page and flip in four (4) pages
7 you'll see something called, Court File Number.
8 A: Okay. Okay.
9 Q: Sorry. Thank you. And you see, near
10 the -- two-thirds (2/3's) of the way down, the heading,
11 Notice of Motion without Notice?
12 A: Yes.
13 Q: And after -- just after that, it
14 says:
15 "The Plaintiffs will make a Motion"
16 Right?
17 A: Okay.
18 Q: And we've seen that at least on
19 paper, you were one of the Plaintiffs, is that right?
20 A: This is a request from the Attorney
21 General. This is something that, my understanding the
22 police said they needed and I didn't object to that
23 recommendation and that was the direction the Government
24 was going.
25 Q: Fair enough, but -- and I understand

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1 you're describing your level of actual involvement in the
2 Court application, but the reality is, for purposes of
3 legal court records, you are identified as a Plaintiff.
4 In any event, first of all, I gather -- is
5 it fair to say that your overall relationship in your
6 mind to this Court application was that your name was on
7 it, but the decisions related to it and the moving
8 forward of it was carried out by the Attorney General
9 department and others?
10 A: Well, the Ministry of Natural
11 Resources' name was on it and that's my understanding
12 that the lawyers did the proper procedure on it.
13 Q: Right.
14 A: I have no evidence to --
15 Q: All right.
16 A: -- disregard that.
17 Q: If you could turn to handwritten page
18 -- again I apologize, but the handwritten pages on the
19 top right are not entirely...
20 Right. Go to handwritten page 10, the top
21 right.
22 A: Okay.
23 Q: And then flip another page and one
24 (1) more page and you'll see something about two-thirds
25 (2/3's) of the way down says, "Affidavit of Leslie Kazo

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1 Kobayashi"; is that right?
2 A: Yes.
3 Q: Okay. And then you have a paragraph
4 labelled paragraph 1. Do you see that?
5 A: Yes.
6 Q: And then the next page, you have
7 paragraph 2, correct?
8 A: Yes.
9 Q: And let me just read paragraph 2. It
10 says:
11 "The land that makes up the Park was
12 part of land surrendered for sale by
13 the Kettle Point and Stoney Point First
14 Nation in 1928."
15 Now, my question to you as the nominal or
16 theoretical Plaintiff in this Court Application which is
17 being put forward with this Affidavit is that, it appears
18 that there's no reference in this Affidavit, in the
19 written materials filed, to an agreement between the
20 Crown and the natives about this land from the previous
21 century.
22 And my question to you is, as the Minister
23 of Natural Resources would you agree it would have been
24 more complete, more fair, to have included in this
25 written materials, a description, however brief, of that

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1 previous land agreement?
2 OBJ MS. SUSAN VELLA: I have an objection.
3 COMMISSIONER SIDNEY LINDEN: Yes, Ms.
4 Vella?
5 MS. SUSAN VELLA: My objection, first of
6 all, we haven't established even if this person -- Mr.
7 Hodgson had any role in this development of the
8 Application or reviewed the material.
9 But more importantly, the question asked
10 by My Friend of necessity requires legal background and
11 knowledge as to what would have been appropriate to place
12 before the Court in support of a without notice
13 injunction application, so I object on that ground.
14 COMMISSIONER SIDNEY LINDEN: Yes, I think
15 that's a valid objection, subject to what you have to
16 say.
17
18 (BRIEF PAUSE)
19
20 MR. MURRAY KLIPPENSTEIN: Well, with
21 respect to the first part of My Friend's comment, the
22 Minister, the government, the Crown, went to Court with
23 the Minister of Natural Resources as a Plaintiff, and
24 so --
25 COMMISSIONER SIDNEY LINDEN: Who were the

1 (BRIEF PAUSE)
2
3 Q: ...Ms. Vella took you through some of
4 the letters that we've looked at, 1996 letters, sent by
5 yourself to the Federal Minister. And perhaps, just for
6 reference, if you could -- I wonder if you could take the
7 Commission brief of documents and turn to Tab 65.
8
9 (BRIEF PAUSE)
10
11 Q: And this is a letter to the Minister
12 of Indian Affairs federally and the Federal Minister of
13 National Defence signed by yourself. Ms. Vella, in
14 examination- in-chief on January 12th reviewed this with
15 you and said on page 266 of the transcript:
16 "What was the purpose of writing this
17 correspondence?"
18 And your answer was:
19 "We wanted to help the First Nation get
20 the Federal Government involved, to do
21 what they were legally and in my
22 opinion morally obligated to do, return
23 the Military Base, clean it up in good
24 condition."
25 Now, I take it from that that you felt at

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1 the time that the Federal Government had both a legal and
2 -- apparently a legal obligation but also a moral
3 obligation to return the Camp lands; is that right?
4 A: That's correct.
5 Q: Yeah. And would you agree with me
6 that it's similarly fair to ask through this Inquiry
7 whether or not the Provincial Government has a moral
8 obligation to return the Park lands to Native people?
9 That's a fair question to look at isn't
10 it?
11 A: I don't agree with that at all.
12 Q: All right.
13 A: The circumstances are totally
14 different. The information that I'm aware of is that the
15 Federal Government has on numerous occasions promised to
16 deliver their lands back to the First Nation in a clean
17 state of affairs. It's not a legal question, that's what
18 they publicly announced on a number of occasions over
19 many years.
20 MR. MURRAY KLIPPENSTEIN: I have no
21 further questions, Commissioner. Thank you very much for
22 your patience. Thank you, Mr. Hodgson.
23 COMMISSIONER SIDNEY LINDEN: Thank you
24 very much, Mr. Klippenstein.
25 MR. DERRY MILLAR: Commissioner, before

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1 we move on to the next person I wanted to bring everyone
2 up to date about the -- the schedule.
3 Mr. Harris, I've been advised by Mr.
4 Downard, is available on February 14th, 15th, 16th, until
5 the noon on the 20th so we'll call him on the morning of
6 February 14th; that's a Tuesday.
7 He's also available on February 17th but
8 I've checked with the building and our Ms. Beach checked
9 with the Municipality and unfortunately this room's
10 booked on the 17th, but -- so...
11 COMMISSIONER SIDNEY LINDEN: What day of
12 the week is the 17th?
13 MR. DERRY MILLAR: That's a Friday.
14 COMMISSIONER SIDNEY LINDEN: A Friday.
15 MR. DERRY MILLAR: But --
16 COMMISSIONER SIDNEY LINDEN: So, it's
17 either Tuesday, Wednesday, Thursday?
18 MR. DERRY MILLAR: Thursday...
19 COMMISSIONER SIDNEY LINDEN: Which are
20 our normal sittings.
21 MR. DERRY MILLAR: Our normal sittings.
22 COMMISSIONER SIDNEY LINDEN: And then the
23 following week?
24 MR. DERRY MILLAR: Then he's available
25 until --

1 The Witness is asking for a short break.
2 THE WITNESS: While he plugs in.
3 MR. PETER ROSENTHAL: Oh, certainly.
4 COMMISSIONER SIDNEY LINDEN: We're going
5 to take a short break while you're plugging in. We'll
6 take a short break.
7 THE REGISTRAR: This Inquiry will recess
8 for five (5) minutes.
9
10 --- Upon recessing at 11:32 a.m.
11 --- Upon resuming at 11:48 a.m.
12
13 THE REGISTRAR: This Inquiry is now
14 resumed. Please be seated.
15 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
16 Rosenthal.
17 MR. PETER ROSENTHAL: Thank you, Mr.
18 Commissioner.
19
20 CROSS-EXAMINATION BY MR. PETER ROSENTHAL:
21 Q: Good morning, barely, sir. Good
22 morning still barely. As you know I think my name is
23 Peter Rosenthal. I'm representing some of the Stoney
24 Point people under the name Aazhoodena and George Family
25 Group.

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1 Now I note, Mr. Commissioner, it's about
2 ten to 12:00. We usually stop at about 12:00. I could
3 perhaps just begin with a very short bit and set the
4 stage and then adjourn for lunch.
5 COMMISSIONER SIDNEY LINDEN: Or we could
6 go a little longer, until quarter after or whatever suits
7 you, Mr. Rosenthal.
8 MR. PETER ROSENTHAL: I will stop as soon
9 after noon as a convenient place --
10 COMMISSIONER SIDNEY LINDEN: That's fair
11 enough.
12 MR. PETER ROSENTHAL: -- that seems to
13 reach, is that okay?
14 COMMISSIONER SIDNEY LINDEN: That's fair
15 enough.
16
17 CONTINUED BY MR. PETER ROSENTHAL:
18 Q: Now sir, we've had evidence from a
19 number of people about different views among political
20 and civil staff with respect to how to deal with
21 Ipperwash, how quickly to act and so on.
22 I want to tell you some of what Mr. Ron
23 Vrancart told us and this is in the transcript of October
24 27 beginning at page 197, beginning about line 17. I'll
25 read it and you can read along on the screen if you wish,

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1 sir.
2 "You told us you didn't feel that this
3 occupation had to be dealt with
4 urgently.
5 A: That's correct.
6 Q: And one reason you told us there
7 was concern about the water freezing
8 but that was two (2) months away so
9 that was enough time, right?
10 A: Yes.
11 Q: And also I gather that the fact
12 that the Park had been closed for
13 Labour Day would reduce the urgency of
14 acting.
15 A: That's correct.
16 Q: But then you told us something to
17 the effect of that even though in your
18 view it was clear there was no urgency,
19 there seemed to be a sense of urgency
20 being attached to it, is the word you
21 used I believe a few minutes ago.
22 A: Yes.
23 Q: Now, that sense of urgency was
24 being attached to it by some of the
25 politicians and political staff as

125

1 opposed to civil servants. Is that
2 fair?
3 A: I think that would be a fair
4 statement, yes.
5 Q: And were you able to find out the
6 basis of that sense of urgency being
7 attached to it? Or I would suggest to
8 you it was political considerations
9 that this Government wanted to show
10 people that they act quickly and
11 decisively in dealing with the
12 protesters of this type? That was
13 essentially what was going on, isn't
14 that right?
15 A: I think that was probably a large
16 part of it, yes."
17 Now, sir, I brought that evidence to your
18 attention to suggest to you that you and your Ministry
19 and in particular you had consulted of course with Mr.
20 Vrancart and with your Executive Assistant, Mr. Bangs,
21 were among the people who were saying, there wasn't any
22 need for quick action here because it was not really an
23 emergency situation.
24 Is that fair?
25 A: Mr. Vrancart and I were of the same

126

1 mind most of the time my experience in working with him.
2 There was no sense of urgency and I think I've clarified
3 this in my testimony so far in terms of the Park itself.
4 Q: Exactly.
5 A: The concern that was a general
6 concern, was that the situation could escalate to the
7 occupation of roads in the surrounding area, or Highway
8 21, in particular.
9 Q: There was that general concern, but
10 that didn't lead to a notion that they had to be out of
11 the Park right away, right?
12 A: There wasn't --
13 Q: It wasn't --
14 A: There was a --
15 Q: -- really urgent?
16 A: There was an understanding that he
17 wanted the situation dealt with quickly in terms of
18 stopping an escalation. In terms of the Park, I was
19 normally, like I said, of the same mind as Mr. Vrancart
20 and we talked about that and I've given testimony to that
21 effect already.
22 Q: Well, we've had evidence that there's
23 some evidence that the Premier, for example, might have
24 wanted them out within twenty-four (24) hours and a real
25 urgency like that.

127

1 You didn't feel that kind of urgency, did
2 you, sir?
3 A: I never heard that, either.
4 Q: But you didn't feel that kind of
5 urgency, did you, sir?
6 A: No, I did not.
7 Q: And we've heard that the Premier was
8 said to be hawkish on this issue. You didn't feel
9 hawkish on this issue yourself, did you, sir?
10 A: No, it's not a word that I'm familiar
11 with, either, but...
12 Q: I see. Don't you know, when people
13 talk about war, they talk about hawks --
14 A: Oh, I --
15 Q: -- and doves.
16 A: -- understand the American flag and
17 there's some --
18 Q: So hawkish meaning aggressive and
19 anxious to go quickly and so on. You didn't feel any of
20 that yourself?
21 A: No, and it's not a term I would have
22 used or heard used around there, either.
23 Q: But then you were forced to be the
24 spokesperson on this for a while, right?
25 A: Yes.

128

1 Q: You've told us. And you were quite
2 reluctant to assume that role, as you've told us, and as
3 other witnesses have told us.
4 And I would suggest to you that the
5 situation was that the Premier's office was really
6 pushing this to go quickly and so on. And you were not
7 really pushing it and that's why it was very
8 uncomfortable for you to be the spokesperson on this
9 issue.
10 Is that a fair statement, sir?
11 A: That wasn't my understanding at the
12 time. My understanding was the Interministerial
13 Committee had recommended that I be the spokesperson.
14 Q: Yes, but why were you so
15 uncomfortable? I suggest to you, you were uncomfortable
16 because you weren't really directing the thing at all, it
17 was the Premier's office that was moving it along and you
18 didn't feel you could speak to the way they were doing
19 it; isn't that fair?
20 A: Well, I can just tell you that the
21 years I was in political life, I never felt comfortable
22 on issues that weren't my jurisdiction or that I wasn't
23 responsible for.
24 And so that's the basis of my reluctance
25 to be the spokesperson on an issue that had been ONAS'

129

1 all summer. All of a sudden, I arrived back from
2 Haliburton and I'm going out in twenty (20) minutes to --
3 to speak on the issue.
4 Q: Well, we've had a lot of evidence,
5 sir, at this Inquiry that, at the ONAS meetings, many
6 people felt that Deb Hutton, representing the Premier,
7 dominated those meetings and pushed the agenda the way it
8 went, okay.
9 I'm just telling you that, as a fact, that
10 we've had some evidence to that effect.
11 Now did you get any such understanding at
12 the time, sir?
13 A: Not at the time, no.
14 Q: I see. You got some understanding
15 later?
16 A: Only in regard to one specific.
17 Q: What was that?
18 A: At the time I thought it was the
19 Chair of the Interministerial Committee that suggested
20 that I go out and be the spokesperson for the Government.
21 Q: And then you later found out...?
22 A: Well, later on it was the rumour that
23 that may be Deb Hutton that had suggested that.
24 Q: It was rumoured --
25 A: But at the time, I thought it was the

130

1 Chair of the Interministerial Committee --
2 Q: I appreciate that. But later on you
3 heard rumours that Deb Hutton might have been the one
4 who --
5 A: Suggested that I --
6 Q: -- suggested you should be
7 spokesperson?
8 A: -- be spokesperson, yes.
9
10 (BRIEF PAUSE)
11
12 Q: Well, Deb Hutton was, evidently, a
13 quite powerful figure in the Government at this point; is
14 that correct?
15 A: It's not my understanding at the
16 time.
17 Q: Not your understanding?
18 A: No, and maybe it's just naivety, but
19 my impression at the time was that Deb Hutton was a
20 political staff person, equivalent to a policy advisor.
21 Q: I see.
22 A: You may have -- I may be corrected on
23 that, I probably will be, but my impression, in early
24 '95, was that David Lindsey was Mike Harris' principle
25 secretary. And --

131

1 Q: I see.
2 A: -- if David Lindsey had phoned me or
3 suggested something, that would have meant more to me
4 than Deb Hutton or Bill King or -- with all due respect
5 to those individuals.
6 Q: And you were so reluctant to be the
7 spokesperson that you came late to a Cabinet meeting to
8 avoid a media scrum, you told us, right?
9 A: I was late. I was intending on being
10 late and ended up missing it completely.
11 Q: Yes. But you -- you intended to be
12 late to -- to avoid the media?
13 A: I was not going to be the
14 spokesperson on this issue. It was not my issue in
15 August and it wasn't my issue on September 5th.
16 Q: Yes. So no matter who told you to be
17 spokesperson, you were not going to be spokesperson,
18 right?
19 A: That's correct.
20 Q: And on the other hand, instead of
21 just simply saying that at that point, you decided you
22 would avoid the issue by not attending the Cabinet
23 meeting on time, and therefore not having to face the
24 media scrum?
25 A: That's right, and I was going to deal

132

1 with the issue later.
2 Q: Yeah. You were going to communicate
3 to the Premier's office later that you would not be the
4 spokesperson on this issue?
5 A: No, I was going to communicate it to
6 the Interministerial Committee first --
7 Q: Okay.
8 A: -- that I wasn't going to be the
9 spokesperson, and if I needed to I would have talked to
10 the Premier.
11 Q: Yes. And then how did you get out of
12 being spokesperson, ultimately, then?
13 A: I mentioned to the meeting I was at,
14 about 11:30-ish, that I wasn't going to be the
15 spokesperson. I made my point very clearly.
16 And then at the dining room meeting, in
17 the presentation that Larry Taman gave, he addressed the
18 issue and said that Charlie Harnick was going to be the
19 spokesperson.
20 Q: I see.
21 A: And I felt the issue had been dealt
22 with.
23 Q: And you were relieved at that point?
24 A: Yes, I was. I was paying attention
25 to that part of the presentation.

133

1 Q: Now, at the dining room meeting you
2 told us that Mr. Harris was obviously frustrated and
3 speaking in a loud voice, and you could see from his body
4 language that he was frustrated, right?
5 A: Yes.
6 Q: And he was angry, I would put it to
7 you, right?
8 A: No, I've seen the Premier angry. I
9 wouldn't say he was angry. He was frustrated and spoke
10 in a, it wasn't a quiet voice but it wasn't yelling or
11 anything like that.
12 Q: He was known to be a person with a
13 temper, right?
14 A: I'm sorry?
15 Q: Mr. Harris was known to people like
16 you to be a person who could get quite angry?
17 A: Well, in later years I've seen that
18 sometimes, in some instances, but I wouldn't characterize
19 him that way, no.
20 Q: I see. You did surely hear him use
21 the word 'fucking' as an adjective from time to time in
22 the course of your interaction with him, did you not,
23 sir?
24 A: Not as often as I've heard others use
25 it, but I've heard that, yes.

134

1 Q: You've heard it and you've heard it
2 in meetings of Cabinet, for example?
3 A: Very rarely, actually.
4 Q: Rarely, but occasionally?
5 A: Occasionally, I would -- I can recall
6 it coming up, but not at formal meetings with Deputy
7 Ministers, very often.
8 Q: Yes. Not at formal meetings so much
9 as at informal meetings; is that fair?
10 A: Well, in terms of who was in
11 attendance; if there was cabinet ministers and deputy
12 minister's, it's very rare.
13 Q: Now, as you know, Mr. Harnick
14 testified that at the dining room meeting, just before it
15 began as a meeting, Mr. Harris said, I want the fucking
16 Indians out of the Park, right?
17 You were aware of that testimony?
18 A: I'm aware of that testimony.
19 Q: And you told us you don't recall
20 hearing that?
21 A: That's correct.
22 Q: But I would put it to you that he
23 might have said that and you might have forgotten it now,
24 ten (10) years later; isn't that fair?
25 A: No, I think I would have remembered

135

1 that.
2 Q: Why would you remember that,
3 particularly, sir?
4 A: It was very rare that you hear those
5 words all put together.
6 Q: Which words all put together?
7 A: In a meeting with deputy ministers
8 and cabinet ministers and it was a short meeting.
9 Q: It was an informal meeting?
10 A: It was informal in the sense that it
11 wasn't an official cabinet meeting but it was formal, in
12 my sense, that there were people there that were pretty
13 senior in the Government.
14 Q: Well, I -- I must refer you to the
15 fact that memory can be fragile as your counsel told us
16 when he was examining Dr. Todres. And people who want to
17 check how my questions compare with this Witness' counsel
18 might want to look at November 30th page 136. I'm not
19 suggesting you post that necessarily, Mr. Millar.
20 But do you agree that memory can be
21 fragile, sir?
22 A: Well, I'm not a psychologist, but I
23 would agree with that, yes.
24 Q: And you've experienced to have quite
25 wrong memories about an event, from time to time?

136

1 A: I'm sorry?
2 Q: From time to time, you've had a
3 memory of an event that turned out to be quite wrong; is
4 that not fair, sir?
5 A: Not so much memories but assumptions
6 maybe, yes.
7 Q: But you -- you never mis-remembered
8 something?
9 A: Oh, sometimes, I'm sure, just --
10 Q: Yes.
11 A: -- like everyone else in this room.
12 Q: And your memory can sometimes be
13 incomplete and unreliable; isn't that fair?
14 A: I'll take your word for it.
15 Q: Oh, well, don't take my word for
16 anything, sir. Too dangerous for you. Mr. Harris did
17 say, Fucking, sometimes at meetings of roughly that type.
18 There's no reason that you would, necessarily,
19 particularly, remember it ten (10) years later; isn't
20 that fair?
21 A: Well I don't recall it, and I've
22 stated that.
23 OBJ MS. JENNIFER MCALEER: I have an objection
24 to that question.
25 COMMISSIONER SIDNEY LINDEN: Just one

137

1 second, Mr. Hodgson. Yes, Ms. McAleer...?
2 MS. JENNIFER MCALEER: This is an
3 important area and I would just ask that Mr. Rosenthal be
4 very particular in his questions. His question was
5 phrased, In meetings of this type. I don't think we've
6 heard any evidence to any other dining room meetings or
7 any other informal meeting surrounding the circumstances
8 at Ipperwash.
9 And I would just ask Mr. Rosenthal to be
10 very particular in his questions on this topic. Thank
11 you.
12 COMMISSIONER SIDNEY LINDEN: Thank you,
13 Ms. McAleer.
14 MR. PETER ROSENTHAL: Oh, I don't think
15 that's an appropriate objection. What I meant by, "this
16 type," was not dining room meetings but --
17 COMMISSIONER SIDNEY LINDEN: I would
18 keep --
19 MR. PETER ROSENTHAL: -- general meetings
20 of that type. In any event, I'll move on.
21 COMMISSIONER SIDNEY LINDEN: Thank you,
22 Mr. Rosenthal.
23
24 (BRIEF PAUSE)
25

138

1 CONTINUED BY MR. PETER ROSENTHAL:
2 Q: Now, you told us that at the dining
3 room meeting the Premier said something to the affect of
4 that, If mistakes are made, it will all come out in an
5 inquiry. Something to that effect you do recall; is that
6 correct?
7 A: That was in relationship to the
8 situation as it has developed, that --
9 Q: Yeah.
10 A: -- there's an occupation, yes.
11 Q: Yes. Now whatever words he used, he
12 certainly gave people there or somebody gave you the
13 understanding that he thought there had been one mistake
14 already, namely the mistake of allowing the persons to
15 actually occupy the Park, rather than heading it off
16 before they were successfully occupying, right?
17 A: No. That was -- there's a nuance to
18 that, that it was a general -- my impression was that
19 it's easier to avoid these situations. The situation
20 should have been dealt with; with some of the underlying
21 causes, for example --
22 Q: Yes.
23 A: -- the Federal inaction --
24 Q: Yes.
25 A: -- to hand over the Military Base,

139

1 which just fermented and created the situation.
2 Q: Well, you're expressing it as it's
3 easier to avoid these situations, isn't that equivalent,
4 more or less, to saying that it's a mistake not to stop
5 it at the beginning because it's easier to do it then,
6 than afterwards?
7 A: No. You're making the assumption
8 that it's at the beginning of the occupation. My
9 assumption was that at the beginning of the dispute
10 around the Federal military lands that led to the need to
11 get --
12 Q: Oh, I see.
13 A: -- the Federal Government's
14 attention.
15 Q: So he was talking about 1942, in you
16 view?
17 A: Well, I don't know if -- I can't
18 speak for the Premier, but I was referring to the month
19 of August, they'd had a meeting that was supposed to look
20 at ways to avoid --
21 Q: Yes.
22 A: -- this escalation from the military
23 camp onto the highways or potentially parks.
24 Q: So you were talking about the month
25 of August 1995?

140

1 A: Yes.
2 Q: In anticipation of a possible
3 takeover of the Park, right?
4 A: Or a possible -- was more likely, in
5 our opinion, was a possible blockade of the roads --
6 Q: Or possible blockade of the roads.
7 A: -- surrounding the military base, in
8 August.
9 Q: Yes. So possible blockade of roads,
10 possible takeover of park in August '95. And since
11 people were aware of those possibilities from August '95,
12 it should have been prevented rather than being allowed
13 to occur in September of '95, right?
14 A: Well my opinion was that they had a
15 meeting on August the 2nd led by ONAS --
16 Q: Yeah.
17 A: -- that there should have been
18 somebody down on the ground finding out, you know, how do
19 we avoid these situations from escalating.
20 Q: Yes. And that's -- and as you
21 understood it --
22 A: And that's my -- the context -- it
23 was my understanding of what the Premier's gauntlet was--
24 Q: Yes.
25 A: -- upon the beginning of the meeting.

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1 Q: Yes. So he was talking about it was
2 a mistake to not contain it as it was in August '95 and
3 allow it to develop as it had by September '95, right?
4 A: I don't think he said a mistake. I
5 think he said, If there was mistakes made it will all
6 come out in an inquiry. So --
7 Q: Yes.
8 A: -- it, you know, it's unfortunate
9 that we're at this stage, and then the meeting went
10 forward.
11 Q: Yes. But mistakes would come out in
12 an inquiry, in general, any mistakes, whenever they were
13 made, presumably, right?
14 A: That's my recollection.
15 Q: But, it was also the implication that
16 it should have been dealt with in August, it should have
17 been contained like it was in August. So there's already
18 one (1) mistake here; it wasn't so contained, right?
19 A: "Mistake" might be too hard a word in
20 terms of -- I think there was the recognition that it's
21 easier to avoid these situations.
22 Q: Yes. Well, there was one failure,
23 one -- one shortcoming, that we didn't avoid the
24 situation and here we are stuck with it, right?
25 A: Okay.

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1 Q: Yeah. So now that would have been
2 part of the inquiry, presumably, and any future mistakes
3 would also be part of whatever inquiry Mr. Harris was
4 talking about, right?
5 Is that right, sir?
6 A: That's fair.
7 Q: You can't just shake your head,
8 because the --
9 A: It doesn't pick it up in the
10 transcript.
11 Q: The transcript doesn't record that,
12 sir.
13
14 (BRIEF PAUSE)
15
16 Q: I am going to move on to a different
17 area now, sir, and perhaps I -- this would be a good
18 time, since we normally break at noon on such days. It's
19 now 12:07, according to my watch.
20 COMMISSIONER SIDNEY LINDEN: That's fine,
21 we'll break for lunch now.
22 MR. PETER ROSENTHAL: Thank you.
23 THE REGISTRAR: This Inquiry stands
24 adjourned until 1:30.
25

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1 --- Upon recessing at 12:07 p.m.
2 --- Upon resuming at 1:30 p.m.
3
4 THE REGISTRAR: This Inquiry is now
5 resumed. Please be seated.
6 MR. PETER ROSENTHAL: Afternoon, Mr.
7 Commissioner.
8 COMMISSIONER SIDNEY LINDEN: Good
9 afternoon.
10 MR. PETER ROSENTHAL: Good afternoon, Mr.
11 Hodgson.
12 THE WITNESS: Good afternoon.
13
14 CONTINUED BY MR. PETER ROSENTHAL:
15 Q: Now, I gather from afar, and you were
16 right there to see it, and you could perhaps shed some
17 light, that Mr. Harris was a rather strong sort of
18 leader, a strong personality. Is that fair to say?
19 A: Okay.
20 Q: Would you agree with that from your
21 observations, sir?
22 A: I'd agree with that, yes.
23 Q: And you told us that he sometimes
24 said, 'fucking' at certain kinds of meetings as you
25 described. And I put it to you that encouraged other

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1 members of his Cabinet and other people close to him to
2 use that word at such meetings from time to time, as
3 well; is that fair?
4 A: No, I don't recall him using the "F"
5 word that often in meetings.
6 Q: Not that often. But his using it
7 encouraged others to use it from time to time; is that
8 fair to say?
9 A: No.
10 Q: Or was he -- was -- so he was the
11 only person of, say, among the Cabinet members at
12 gatherings that you attended, was Mr. Harris the only
13 person who you ever heard say the word 'fucking'?
14 A: No, you asked me if I'd ever heard
15 him say it --
16 Q: No, no.
17 A: -- and the answer was yes.
18 Q: Sorry. I -- perhaps -- perhaps I
19 didn't express myself clearly --
20 A: Yes.
21 Q: -- sir. We dealt with him saying it
22 earlier this morning, before lunch.
23 A: Yes.
24 Q: Now, we're after lunch. And what I
25 was asking you was: Did the fact that he occasionally

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1 said it seem to encourage other people to say it from
2 time to time, occasionally?
3 A: No.
4 Q: So, in other words, he is -- is it
5 true then that he is the only person that you heard say
6 the word 'fucking' at a meeting in follow -- that
7 included Cabinet Ministers during your time in
8 government?
9 A: I don't ever recall the "F" word
10 being used, for example, around Rita Burak or senior
11 Deputy Ministers in the --
12 Q: I'm sorry, sir, my hearing is not
13 good. Sorry.
14 A: Either is mine. So --
15 Q: Okay. So let's both speak loudly
16 then.
17 A: If I understood the question
18 correctly, I -- we're going to have a lovely afternoon
19 because I sometimes can't hear that well either. The --
20 Q: Perhaps you -- you could move a bit
21 closer to the microphone, sir.
22 A: The -- just to clarify --
23 Q: Yes.
24 A: -- I don't recall the Premier using
25 the "F" word, for example, in front of Rita Burak or

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1 senior Deputy Ministers --
2 Q: I -- I understand that.
3 A: -- in that kind of a setting.
4 Q: I understand. You told us that you
5 thought it was basically confined to informal meetings
6 with Cabinet colleagues.
7 Was that -- was that your evidence, sir?
8 A: No, I heard them use the "F" word on
9 -- you know, we've been in places where they weren't
10 meeting, it was just a --
11 Q: Yes. Okay.
12 A: -- conversation, but not as much as
13 I've heard other people use it.
14 Q: And those other people --
15 A: And --
16 Q: -- include other members of Cabinet
17 then, sir?
18 A: No. Growing up in Haliburton I've
19 heard the word before.
20 Q: Well, I grew up in New York. I heard
21 the word many, many times and I've said it a few times.
22 But my question for you sir is the
23 following: Is it or is it not the case that you heard
24 some of your Cabinet colleagues use that word from time
25 to time at some gatherings during the time that you were

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1 in government; some colleagues -- Cabinet colleagues
2 other than Mr. Harris, or was he the only one?
3 A: Well, there may have. I can't recall
4 any specifics.
5 Q: Now, would you agree with me that
6 it's likely, taking your mind back and it is ten (10)
7 years later, but that you heard someone use the
8 expression 'fucking Indians' over the course of September
9 4, 5, 6, 7 --
10 A: Absolutely not.
11 Q: -- 1995? So, you don't recall
12 anything like that?
13 A: Absolutely not.
14 Q: Did you ever use the word 'fucking'
15 in any gatherings of your Cabinet colleagues?
16 A: In which sense? Like --
17 Q: Did you ever say the word 'fucking'
18 in any sense in gatherings with your Cabinet colleagues?
19 A: Not at Cabinet meetings, that I can
20 recall.
21 Q: Not at formal Cabinet meetings. What
22 about at informal gatherings?
23 A: Well I -- I can't recall; if we were
24 at a hockey game or something. I'm not saying I didn't
25 or wouldn't. I try not to make a habit of it.

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1 Q: We've had evidence at this Inquiry as
2 you know, from Dr. Todres that you said, "Get the fucking
3 Indians out of my Park" and you denied saying that; is
4 that correct?
5 A: Absolutely, I did not say that.
6 Q: Now, would you agree that it was
7 possible that ten (10) years ago at some point given your
8 frustration at being made to be the spokesperson when you
9 were not in control of the situation and given the
10 difficulty of the situation, you might have gotten upset
11 and angry about the situation. Is that fair?
12 A: No. No.
13 Q: Not at all?
14 A: No.
15 Q: You don't agree that you might have
16 indicated you just want the Indians out of the Park, say
17 for example? Something like that? Just get the Indians
18 out of the Park already; you might --
19 A: No. I didn't say --
20 Q: -- even have said something like
21 that?
22 A: I did not say a word at that meeting.
23 Q: At any gathering, on September 4, 5,
24 6, 7 in 1995, might you have said, Just get the Indians
25 out of the Park, let's get over -- get this thing over

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1 with?
2 A: No, I did not.
3 Q: Or some words to that effect?
4 A: No, I did not.
5 Q: Nothing like that at all?
6 A: No.
7 Q: Let me ask you a different question.
8 The expression, 'the fucking Indians', in your view, is
9 that a racist expression?
10 A: On the surface I would consider it to
11 be, yes.
12 Q: And what about below the surface?
13 A: The words themselves I would feel
14 that it has a racist connotation to it. It would depend
15 on, you know, the context and who the speaker was and --
16 before I'd ever draw a conclusion that the speaker was
17 racist.
18 Q: Well, I would put it to you that to
19 say 'the fucking' and then ethnic group, is generally a
20 racial slur against that group. Is that fair to say?
21 A: I would agree with that on the
22 surface.
23 Q: On the surface?
24 A: Yeah.
25 Q: But how do you go beneath that

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1 surface then and -- and explain to me what's under the
2 surface?
3 A: Well, if I -- if I heard it from an
4 Aboriginal person or an Aboriginal leader, I might just
5 assume they were frustrated with the certain actions of
6 those individuals as opposed to being a racist comment
7 about those individuals.
8 Q: So, if you heard it from a person of
9 the race to which the adjective 'fucking' was applied,
10 you would assume he means something different? Is that--
11 A: My opinion is no better is no better
12 than yours. I'm just telling you that I wouldn't jump to
13 the conclusion if I heard it from an Aboriginal person or
14 Aboriginal leader that -- that they were racist against
15 Aboriginal peoples.
16 Q: Right. But --
17 A: I would assume something else.
18 Q: But if -- but if a caucasian person
19 said 'the fucking Indians' you would jump to the
20 conclusion that person's racist, wouldn't you?
21 A: Only if it was a pattern, and what
22 the context about it was. But on the surface, I agree
23 those are offensive remarks.
24 Q: Okay. I would like to turn to
25 something else. I'm going to pick up on a little bit of

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1 what I quoted to you from Mr. Vrancart earlier from his
2 evidence on October 27 at page 198. Just -- you don't
3 have to look at it again necessarily; it's a short bit.
4 But if it's easily available it's okay too.
5 But towards the end of what I quoted
6 before, he was asked and gave the following answer:
7 "I would suggest to you it was
8 political considerations that the
9 Government, this Government, wanted to
10 show people that they act quickly and
11 decisively in dealing with protesters
12 of this type.
13 That was essentially what was going on;
14 isn't that right?"
15 And he answered:
16 "I -- I think that was probably a large
17 part of it, yes."
18 Now, sir, what I should like to ask you:
19 Would you agree that one of principles of the Harris
20 Government was that they don't recognize protesters; that
21 if you want to speak to the Harris Government, you write
22 a letter, you make a phone call, you do something else,
23 but protesters, they don't deal with directly until the
24 protest is over.
25 Was that -- was that a general sort of

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1 principle?
2 A: Yeah I would agree with that in
3 principle, yes.
4 Q: Yes. And so --
5 A: Of all governments.
6 Q: Of all governments?
7 A: I think that's a stated objective of
8 most governments that I know.
9 Q: Well perhaps, you don't quite have
10 the authority to speak for all governments, but in any
11 event, that was your understanding of the --
12 A: Yeah --
13 Q: -- Harris government. Now, that
14 would be, then consistent with evidence that we've heard
15 that at the Interministerial Committee meetings, Ms.
16 Hutton suggested that it was important to take action to
17 -- to demonstrate a policy in that effect.
18 Some people have described it as a law and
19 order type policy.
20 Do you recall that kind of consideration
21 floating around in your circles at September 4, 5, 6,
22 1995?
23 A: No, I do not.
24 Q: You don't. But, that would be
25 consistent with the general policy of the Harris

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1 government, that sort of law and order approach to those
2 matters; is that fair?
3 A: I don't ever recall that even being
4 brought up or suggested by anybody at any --
5 Q: No, I --
6 A: -- of the meetings I was at.
7 Q: No, I appreciate you've -- you've
8 indicated that.
9 A: Hmm hmm.
10 Q: But, then I'm asking you another
11 question. There was a law and order, sort of, program of
12 the Harris government; is that fair?
13 A: I believe we campaigned on that, yes.
14 Q: Yes. And so what you've told us
15 before about dealing with protesters would be consistent
16 with that campaign promise, right?
17 A: No, I believe the campaign promise is
18 around police officers on the street and enforcing the
19 laws of the Province.
20 Q: I see. But, the idea of not dealing
21 with protesters, especially if you thought that they
22 might be involved in an illegal occupation, would be
23 something consistent with that, right?
24 A: I don't recall reading that in any of
25 our campaign documents, no.

154

1 Q: But, would you agree it would be
2 consistent with it?
3 A: I never connected the two (2) as, you
4 know, the police officers on the street and law
5 enforcement that we campaigned on, with that.
6 Q: Okay, let's turn to something else.
7 I'm going to be referring to some of your evidence from
8 yesterday, at pages 98 and 99. And through the magic of
9 same day transcripts, I love that, thank you, I can read
10 it to you, exactly.
11 So, beginning at page -- at -- on page 98
12 at line 23 or thereabouts, you were being asked questions
13 by Mr. Sandler, Counsel for the OPP, and it was about Ron
14 Fox. And you were asked:
15 "If you'd known that he was a police
16 officer in any capacity, would you have
17 expressed the concern as to what he had
18 been doing to prevent the situation
19 from occurring?"
20 And you answered:
21 "No, I wouldn't have.
22 Q: No, why not?
23 A: Because I wouldn't have talked to
24 the police. I was pretty clear on the
25 distinction between police and -- and

155

1 elected politicians on operational
2 matters."
3 Do you recall that answer to that
4 question, sir?
5 A: Yes, I do.
6 Q: Now, first off, how did you obtain
7 that clarity that you've got? Who gave you that clear
8 distinction between police and elected politicians on
9 operational matters?
10 A: I can't be specific. That would be
11 in High School, probably, or later on at University.
12 Q: I see. So, way before you entered
13 government?
14 A: Yes.
15 Q: And from the time you entered
16 government until September 4th, 5th -- say, September
17 4th, 1995, there was no specific instruction that you
18 received as part of your briefing as a new member of
19 government along those lines? This was something you
20 learned in school.
21 A: No, I believe there was also an
22 introductory session provided for by Rita Burak,
23 Secretary of Cabinet, that I talked about before.
24 Q: Okay. Now also on January 12 you
25 testified, and that might be available also. January 12

156

1 on pages 38 and 39 of the transcript.
2 You were asked, I believe by Ms. Vella,
3 but I'm not absolutely sure, I think so. But in any
4 event, you were asked the following question:
5 "What was your view with respect to the
6 propriety of government officials
7 communicating with the Ontario
8 Provincial Police regarding operational
9 matters?"
10 And you answered:
11 "I was very aware that that was a line
12 that should not be crossed."
13 Then continuing on the next page, on line
14 9:
15 "Q: And do you think that this
16 practice of non-involvement on the part
17 of government officials and employees
18 is appropriate?"
19 And you answered:
20 "Yes, I do. I think it's one of the
21 tenets of civil society and the -- in
22 our democracy that there's a separation
23 between police who lay charges on
24 behalf of the Crown, and -- and
25 government that's elected by the

157

1 people."
2 You recall those answers, sir?
3 A: Yes, I do.
4 Q: So you -- your belief is that it's
5 one of the fundamental tenets of a civil society that
6 there be this separation between politicians and police,
7 right?
8 A: Yes.
9 Q: And otherwise you have what is called
10 a police state, right? That's the other side of that
11 possibility.
12 A: Okay.
13 Q: Would you agree, where the
14 politicians have the police --
15 A: When we direct --
16 Q: -- doing their bidding.
17 A: -- direct whose charged in that,
18 yeah.
19 Q: Now, in light of your understanding,
20 I should like to examine some things that apparently
21 happened in September of 1995.
22 Now, you knew Marcel Beaubien prior to
23 September 1995, did you, sir?
24 A: Yeah, we were elected in June of '95
25 and there, I'm assuming, was some caucus meetings and I

158

1 may have been introduced to him.
2 Q: But you didn't know him well, sir?
3 A: No.
4 Q: Now, prior to, say, September 4, 1995
5 when the occupation of the Park began, had you been aware
6 of concerns from Mr. Beaubien about Ipperwash Park?
7 A: No, I had not.
8 Q: Oh, we're going to look at a letter
9 that was copied to you, but you told us that you didn't
10 get that until later I think; is that right?
11 A: That's correct.
12 Q: We'll come to that in a bit. But
13 then you also told us that Bill King, the Premier's
14 assistant, I'm not sure what his title was, asked you to
15 speak to Mr. Beaubien at some point; is that correct?
16 A: He went through Jeff Bangs, who
17 relayed the message to me. I believe that was on
18 September 5th.
19 Q: So 1995.
20 A: 1995.
21 Q: So on or about, as one says,
22 September 5th, 1995 you were told by Jeff Bangs that Bill
23 King had requested that you speak to Mr. Beaubien about
24 the situation at Ipperwash Park; is that correct?
25 A: That's my understanding, yes.

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1 Q: And the request included that you
2 should communicate with Mr. Beaubien whatever information
3 you had about the situation, that you had learned through
4 MNR channels; is that right?
5 A: No, it was just -- wondered if I
6 would phone him.
7 Q: And he didn't say what to say to him
8 or what not to say to him?
9 A: No, he did not.
10 Q: Just, please phone him?
11 A: That was the message I got, yes.
12 Q: And then you told us you didn't do
13 it, though?
14 A: No, I instructed Jeff Bangs to relay
15 the message back that I didn't feel it was appropriate
16 that I talked to him, it was a police matter.
17 Q: But Mr. Beaubien was not a police
18 officer.
19 A: No, but he would want to know, if I
20 got into a conversation with him, in my opinion, about
21 the situation at Ipperwash and I felt that that was a
22 police matter and I didn't feel that it was proper for me
23 to talk to him.
24 Q: So you somehow got the understanding
25 that he would want information from you about what was

160

1 happening there?
2 A: Well, it was an assumption on my
3 part.
4 Q: That was an assumption? And you had
5 learned something about what was happening there through
6 your MNR chain of command bringing you back information
7 that MNR people had learned from the police, and so on,
8 right?
9 A: No, not at that time. I don't know
10 if I ever understood that, but I talked to the deputy the
11 night before. I talked to Jeff Bangs; Jeff Bangs had
12 relayed what took place. And this was on, I believe,
13 after I'd done the press conference.
14 I'd had a briefing when I arrived in
15 Toronto.
16 Q: And you were afraid that Mr. Beaubien
17 would ask you about that information?
18 A: No.
19 Q: You indicated a moment ago that you
20 didn't return the call to him or didn't make the call to
21 him because --
22 A: I felt it was a police matter and if
23 I had a conversation with him, I didn't think that would
24 be appropriate.
25

161

1 (BRIEF PAUSE)
2
3 Q: So you were assuming that he was
4 interested in the kind of operational matters that should
5 only concern police officers?
6 A: I had no idea, but I felt that if I
7 got into a conversation he might be talking about those
8 issues, and I didn't feel that would be appropriate.
9 And I don't know for certain if Marcel
10 Beaubien had requested that I call him. All I know is
11 that Bill King had asked Jeff Bangs that I call him.
12 Q: And you got no other information,
13 just please --
14 A: That's it.
15 Q: -- Marcel Beaubien?
16 A: And that was it.
17 Q: Now, if you could please turn to your
18 Tab 12, and if we could please have it on the screen.
19 It's Inquiry Document Number 1012239, Exhibit P-418.
20 This is a letter dated August 14, 1995
21 addressed to the Honourable Charles Harnick, Attorney
22 General. And if you look at the second page of the
23 letter below the signatures, it says:
24 "Carbon copies."
25 And the last person mentioned is you,

162

1 Minister of Natural Resources, right?
2 Do you see that, sir?
3 A: Yes.
4 Q: So this letter was copied to you
5 although I -- I believe that your evidence was that you
6 don't recall seeing it until some time well after August
7 14th; is that correct?
8 A: That's correct.
9 Q: But you might have seen it at the
10 time, right?
11 A: No.
12 Q: Impossible that you saw it?
13 A: Well the process at that time was the
14 letters came in, they went into the civil service side of
15 the correspondence unit and it'd come back to my desk --
16 Q: Yes.
17 A: -- for signature. Where there was a
18 suggested response --
19 Q: Well, this wasn't for you to sign.
20 This was a letter to you, not from you, right?
21 A: Hmm hmm.
22 Q: You said it came back to your desk
23 for signature. Did I misunderstand you?
24 A: Yeah. Well, in those days I was
25 still receiving letters addressed to Howard Hampton. And

163

1 the MNR gets a lot of correspondence so --
2 Q: Yes.
3 A: -- I know I didn't see this letter
4 until well after.
5 Q: Well how do you know that? How do
6 you -- how do you -- ten (10) years later, how are you so
7 sure that this didn't get on your desk by August 15th?
8 A: I've been asked about this letter
9 back in 2001 and thought about it, and that I didn't see
10 it.
11 Q: Well would you agree with me, sir,
12 you might well have read this on August 15, 16, 17, 1995
13 and completely forgotten about it; isn't that fair?
14 A: No. That's not the way the
15 correspondence unit worked at that time.
16 Q: I see, so how -- how did the
17 correspondence work in the way that makes you absolutely
18 sure that that did not happen?
19 A: Well there would have been a
20 suggested response attached to it. If it was -- came
21 back from the correspondence unit and there would be
22 check off's of who approved the drafts.
23 Q: Okay. Where is that? You said you
24 did see it later, right?
25 A: Yes.

164

1 Q: So where is that suggested response
2 form then, sir?
3 A: There would be one if they went back
4 to the MNR file and looked at it.
5 Q: So there would be such a form
6 whenever you saw it, right?
7 A: At some point, yes.
8 Q: And we don't have the form?
9 A: No.
10 Q: So we can't tell what time you saw
11 it. And if we had that form we might be able to tell,
12 right?
13 A: Okay. Well I don't want to take up
14 all your time arguing about this, but my recollection is
15 that I did not see this until well after.
16 Q: But, sir, I, frankly, don't
17 understand your answer because you've told us the reason
18 that you thought you didn't see it until well after is
19 because it would be accompanied by a certain kind of
20 form, right? Remember telling us that two (2)
21 minutes ago?
22 A: Yeah, there would be a record of
23 the --
24 Q: Yes.
25 A: -- correspondence where it went.

165

1 Q: But, then you agreed that there would
2 be such a record whenever you saw it, no matter how much
3 later, right?
4 A: I would assume that, yes.
5 Q: So the only way that a record could
6 assist you as to when you saw it would be if you looked
7 at the record, right?
8 A: Yes.
9 Q: And have you looked at the record?
10 A: That wasn't the only reason for my
11 answer but, no, I have not.
12 Q: So you don't have any good reason to
13 assume that you didn't see this on August 15, 16 or 17,
14 1995, sir?
15 A: Well, my assumption is that the
16 correspondence unit, at that time, didn't turn around
17 letters or forward letters to my office in that time
18 period.
19 Q: So it might have taken another few
20 days?
21 A: Or weeks.
22 Q: Or week. Maybe you saw it August
23 22nd.
24 A: That's not my recollection, no.
25 Q: In any event, I would put it to you,

166

1 sir, unless there was a very unusually long turnaround in
2 your office, you would certainly have seen this letter
3 prior to, say, September 4, 1995?
4 A: I have an impression on when I saw
5 this letter because it was after the incident of
6 September 6th.
7 Q: So your impression is you saw it just
8 after Dudley George was killed?
9 A: No, it would be a couple of weeks.
10 It would be a couple of weeks after. I can't be
11 specific.
12 Q: A couple of weeks after Dudley George
13 was killed?
14 A: I know it was after, yes.
15 Q: And what gave you that impression,
16 sir?
17 A: Because I remember looking at it and
18 seeing he wants a response to this.
19 Q: Wanting to respond to it?
20 A: Well, it was cc'd to me and --
21 Q: Yes.
22 A: -- I don't know if we ever did
23 respond to it.
24 Q: Well, when you looked at it then,
25 sir, did the form suggest a response, or no?

167

1 A: Normally, we sent back a response
2 letter to everything we receive.
3 Q: Even if you're just a carbon copy?
4 A: Usually it was thank you for the
5 carbon copy of the letter addressed to Charles Harnick on
6 such and such a date, yes.
7 Q: Well, if I wanted to find out if you
8 did send a response, what would I do, sir? How can we
9 check that?
10 A: That would be logged in the Ministry
11 of Natural Resources correspondence unit.
12 Q: And you would assume that you did
13 respond to this letter?
14 A: No, I can't assume I responded either
15 way but that's normally what would happen if I had
16 responded.
17 Q: Now, sir, let's look at this letter a
18 bit, if we may. It begins:
19 "On August 11, 1995, I met with the
20 following individuals from the Ontario
21 Provincial Police."
22 And then four (4) officers are listed,
23 right?
24 A: Yes.
25 Q: Those are, evidently, high ranking

168

1 officers, right?
2 A: Well, it says --
3 Q: And it says under that:
4 "They were here to discuss the issues
5 at Ipperwash Provincial Park and other
6 matters."
7 Now, given your understanding as you've
8 testified to and as I quoted from earlier transcripts to
9 you a few moments ago of the required separation between
10 police and politicians, in your understanding does this
11 go over that line?
12 A: I don't know if there was -- there's
13 an assumption that I'm making, I don't know if it's
14 correct, that the local MPP would have been invited by
15 the -- those individuals to that meeting.
16 Q: I see. And in your view whether or
17 not a politician is stepping over a line depends upon who
18 initiates the invitation to some extent, sir, or is it
19 entirely independent of that?
20 A: No, I think it's -- just speaking
21 personally if I was invited to a meeting by the OPP I
22 would assume that the OPP are following the proper
23 protocols.
24 Q: I see. So, if the OPP invited you
25 then you would participate to whatever extent they seem

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1 to feel comfortable; is that correct? That's your
2 evidence?
3 A: I would have assumed that they had
4 some information they wanted to share.
5 Q: I see. And you would share it and
6 discuss it with them. If they thought it was okay, it
7 would be okay with you?
8 A: I'm just talking hypothetically here
9 but that's --
10 Q: Yes.
11 A: -- what --
12 Q: Well, I'm trying to explore your
13 understanding of this line, sir.
14 A: Yes.
15 Q: So, your understanding is as long as
16 the OPP is comfortable, you're comfortable?
17 A: As long as they would expressly
18 invite me.
19 Q: I see.
20 A: So, there's no need really for
21 politicians to understand the line because the OPP will
22 enforce the line?
23 A: I thought that was the check in our
24 system, yes.
25 Q: I see. So, whatever interchange Mr.

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1 Beaubien may have had with police officers, as long as
2 the police officers invited those interchanges it's not
3 crossing the line; is that your evidence, sir?
4 A: No, the preamble I probably wouldn't
5 agree with, but if you're invited by the OPP --
6 Q: Yes.
7 A: -- to a meeting I probably would have
8 attended.
9 Q: You would have attended. And would
10 you also have -- if you read on towards the bottom of
11 this letter it reads, last paragraph on this first page:
12 "The representatives from the OPP and
13 Marcel have reached the following
14 consensus."
15 And then it talks about what can be done
16 in the long term and short term broad outlines.
17 Now, would you, if invited by the OPP,
18 participate in a meeting with them and reach a consensus
19 on issues such as are listed here, sir?
20 Or would you feel that was crossing the
21 line that a politician may not cross in relating to
22 police officers?
23 A: My own -- I don't know all the
24 context of this, but I haven't seen this letter for a
25 while. Do you mind if I just take a second to just read

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1 it?
2 Q: Oh, certainly. Please take --
3 COMMISSIONER SIDNEY LINDEN: I think we
4 maybe, Mr. Rosenthal, to be fair you should put to the
5 Witness that there are other witnesses who have testified
6 that there isn't a consensus or a consensus wasn't
7 reached.
8 MR. PETER ROSENTHAL: Sorry, sir, I'm not
9 hearing very well today.
10 MS. SUSAN VELLA: He didn't hear.
11 COMMISSIONER SIDNEY LINDEN: I know but
12 is that a fair comment? I think a fair comment is --
13 MS. SUSAN VELLA: Yes. I think that we
14 did hear that --
15 COMMISSIONER SIDNEY LINDEN: You didn't
16 hear it? Okay, I --
17 MR. PETER ROSENTHAL: I didn't hear what
18 you just said, sir, so --
19 MS. SUSAN VELLA: Yes, we did.
20 COMMISSIONER SIDNEY LINDEN: I think if
21 you're going to put that to him I think it may be fair to
22 indicate that other witnesses, in particular, now Deputy
23 Commissioner Carson indicated that there was not a
24 consensus reached.
25 MR. PETER ROSENTHAL: Well --

172

1 COMMISSIONER SIDNEY LINDEN: You're going
2 to get to that?
3 MR. PETER ROSENTHAL: No, I may get to
4 that or not but --
5 COMMISSIONER SIDNEY LINDEN: Okay.
6 MR. PETER ROSENTHAL: -- but, sir, what I
7 would like to know -- this person was a recipient of this
8 letter at some point.
9 COMMISSIONER SIDNEY LINDEN: Yes.
10 MR. PETER ROSENTHAL: And what he took
11 from the letter, he wouldn't have known anything else
12 then.
13 COMMISSIONER SIDNEY LINDEN: That's where
14 you are at the moment.
15 MR. PETER ROSENTHAL: He wouldn't know
16 what -- anything else about the situation except for
17 what -- what he knew generally, and whatever he would
18 take from this letter. He would not know what Inspector
19 Carson has testified at this Inquiry --
20 COMMISSIONER SIDNEY LINDEN: Well, I --
21 MR. PETER ROSENTHAL: -- ten (10) years
22 later.
23 COMMISSIONER SIDNEY LINDEN: I know that,
24 but it's very difficult because he's indicated that he
25 received it some weeks after so --

173

1 MR. PETER ROSENTHAL: Well --
2 COMMISSIONER SIDNEY LINDEN: Anyway I
3 didn't mean to interrupt you but I did, so I apologize.
4 Carry on.
5 MR. PETER ROSENTHAL: No, no. Thank you,
6 Mr. Commissioner.
7
8 CONTINUED BY MR. PETER ROSENTHAL:
9 Q: In any event I hope, sir, that you've
10 had time while we've been talking about other matters to
11 read the letter. Have you, sir?
12 A: I was paying attention to your
13 conversation.
14 Q: Okay. Well, may I -- may I give you
15 that time please, sir?
16 A: Okay.
17 Q: I -- I do want you to carefully
18 consider your answers --
19 A: Yeah.
20 Q: -- and take whatever time you need.
21 A: There -- there are some things here
22 that, you know, are of a general nature; the long-term
23 solution is the negotiated settlement. That may have
24 been something that, as an MPP, I needed to know.
25 Q: Sir, may I just suggest to you it's

174

1 not -- that's not put as something as information that
2 was transmitted to Mr. Beaubien, according to the letter,
3 but it's part of the consensus.
4 And the thrust of my question, now that
5 you've had time to look at it, sir, is -- first question
6 is: Would you be concerned if you had read this letter
7 and you were mindful of the need for the separation
8 between politicians and police, would you be concerned
9 that Mr. Beaubien was reporting that the OPP and he
10 reached a consensus on the following issues?
11 Would that, in your view, raise, at least,
12 the danger that this was crossing that line that you told
13 us was so important?
14 A: Well, I would -- I wouldn't have done
15 it, but --
16 Q: Sorry, you would not have done it?
17 A: I don't think I would have written a
18 letter talking about OPP guidelines for law enforcement;
19 I would have assumed that was an OPP matter.
20 Q: You wouldn't have written a letter
21 about it?
22 A: I don't believe so, no.
23 Q: Would you have met with the OPP and
24 reached a consensus about such issues, if they invited
25 you to do so?

175

1 A: I was never involved in any
2 invitation of OPP to come to a consensus on law
3 enforcement.
4 Q: Sir, I'm asking about your
5 understanding of the separation that you told us you
6 learned about in school and --
7 A: Hmm hmm.
8 Q: -- was reinforced --
9 A: Yeah.
10 Q: -- when you became a member of
11 government, between politicians and police.
12 Now, given your understanding, would you
13 have met with the OPP and reached a consensus on issues
14 such as this or would that --
15 A: No.
16 Q: -- violate that line?
17 A: To me it would. I'm not an expert in
18 this field, I'm just telling --
19 Q: Right.
20 A: -- my personal opinion.
21 Q: I'm asking your -- your opinion,
22 based on what you told us, what you learned in school or
23 what you were taught as a member of government.
24 A: Yes.
25 Q: It would cross that line, wouldn't

1 what Mr. Lauwers is saying is sometimes before the
2 witnesses finishes, you start another question.
3 MR. PETER ROSENTHAL: I appreciate that
4 and I will try to be mindful.
5 COMMISSIONER SIDNEY LINDEN: That's fine.
6
7 CONTINUED BY MR. PETER ROSENTHAL:
8 Q: Now, Mr. Runciman was sitting there a
9 while ago and he told us that, in retrospect, at least,
10 this letter caused him concern and -- along those lines.
11 So you agree it would you concern too, do you, sir?
12 A: Well, I agree that that was his
13 primary role in government. He's the Minister of the
14 Solicitor General and Corrections and I would agree with
15 him.
16 Q: Now, you told us you don't believe
17 that you read this letter until after September 6th,
18 1995.
19 A: That's correct.
20 Q: You were asked to speak to Mr.
21 Beaubien by Mr. King on September 5th, 1995.
22 A: Hmm hmm.
23 Q: Would you agree with me, sir, that
24 had you been asked to speak to Mr. Beaubien, after having
25 read this letter, it would be incumbent upon you to tell

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1 Mr. Beaubien, You better not have such meetings with
2 police officers, that's crossing the line that we dare
3 not cross as politicians?
4 Would you agree with me that would be your
5 responsibility?
6 A: Yeah, I probably would --
7 Q: In that circumstance?
8 A: I -- hypothetically, I would have
9 conveyed that as well.
10 Q: In that circumstance it would be your
11 responsibility and you would have done it?
12 A: Yes. I don't know if it was my
13 responsibility, but I would have done it.
14 Q: Now, we haven't had evidence from Mr.
15 Beaubien yet, and we don't know who communicated to him
16 what about what -- whether anything he did was
17 appropriate or inappropriate.
18 But we do know that on September 6th,
19 1995, the day that Dudley George was killed, and about
20 five (5) hours before he was killed, at 18:42 on that
21 date, we do know that Mr. Beaubien had another meeting
22 with high up officers and that included John Carson who
23 was one of the attendees at this meeting and was the
24 incident commander at Ipperwash Park.
25 I'm just telling you some facts that you

179

1 don't know if you had direct knowledge, but these are
2 facts established at this Inquiry.
3 I should like to ask you questions along
4 similar lines about some of the evidence we have as to
5 what transpired at that meeting.
6 Now we don't have Mr. Beaubien's version
7 yet of that meeting and we will -- he's set to be the
8 next witness after you and we'll see what he says.
9 But assuming the truth of what I put to
10 you, I'd like your comments with respect to the line, in
11 your understanding.
12 COMMISSIONER SIDNEY LINDEN: Just before
13 you carry on, I see an objection from Mr. Sulman who
14 represents Mr. Beaubien.
15 OBJ MR. DOUGLAS SULMAN: I don't mean to
16 interrupt Mr. Rosenthal before he gets to his question,
17 but if the line of questioning is, give us your opin --
18 here are the set of facts, I'm not sure we -- we're not
19 coming through clearly for him.
20 But if his line of questioning is, here's
21 the set of -- that I put forward to you as a set of facts
22 and I'd like you to give your opinion on whether this is
23 appropriate behaviour.
24 Then I suggest, in advance of getting into
25 that, this is -- this witness has not been qualified to

180

1 give any opinions on those type of issues. He could --
2 he could say whether he would do it if asked, but he's
3 certainly not qualified to give opinion on whether
4 someone else did it anymore qualified than anyone else
5 sitting in this room or in the general public.
6 And if those are the lines of questioning,
7 I'm objecting to those in advance rather than popping up
8 as each question comes.
9 COMMISSIONER SIDNEY LINDEN: Well, in the
10 last series of questions, he was asking him for his
11 opinion so, I'm sorry, for his view not what --
12 MR. DOUGLAS SULMAN: What he would do.
13 COMMISSIONER SIDNEY LINDEN: Yes.
14 MR. PETER ROSENTHAL: Yes. But trying to
15 -- one of the big issues in this Inquiry, of course, is
16 how this Government related to the police officers during
17 the relevant times.
18 And this a member of that Government and
19 he has told us that he had an understanding as to this
20 line and I'm testing that understanding by looking at
21 these facts that we have before us.
22 I've done this with a number of other
23 witnesses. And, in my view, this will shed light at the
24 end of the day on this whole Government's appreciation of
25 what the line should be.

181

1 COMMISSIONER SIDNEY LINDEN: Well --
2 MR. PETER ROSENTHAL: And whichever way
3 he answers is fine. That will help us to understand how
4 he, a Minister of the Government, trained, especially in
5 this line, by the Government, would -- would respond.
6 And we'll see how Mr. Beaubien does when he comes too.
7 So I'm just going to do this briefly, as
8 I've done with other witnesses.
9 COMMISSIONER SIDNEY LINDEN: Yes. If
10 you're asking what he would do --
11 MR. PETER ROSENTHAL: Yes.
12 COMMISSIONER SIDNEY LINDEN: You're not
13 asking his opinion as an expert.
14 MR. PETER ROSENTHAL: No.
15 COMMISSIONER SIDNEY LINDEN: You're
16 asking him what he would do in the situation.
17 MR. PETER ROSENTHAL: What he would do as
18 a trained Cabinet Minister of the Harris Government.
19 COMMISSIONER SIDNEY LINDEN: Well, it's
20 the "trained." You're trying to put him into sort of a
21 category of an expert. Not exactly an expert, but almost
22 an expert.
23 MR. PETER ROSENTHAL: No, no. In his
24 role, sir, it's not that he's an expert in an academic
25 sense looking at a general situation, it's that he is

182

1 somebody who had the same responsibility, as he's told
2 us, and who had an understanding of his responsibility
3 for drawing that line between politics and police.
4 And so we are testing this Government's
5 understanding of and adherence to that policy.
6 COMMISSIONER SIDNEY LINDEN: Well, but
7 you have to do it --
8 MR. PETER ROSENTHAL: And this a member
9 of the Government and I'm testing --
10 COMMISSIONER SIDNEY LINDEN: But you have
11 to do it through an individual and that's the person on
12 the stand now so I'm just...
13 Mr. Sulman, did you want to say something
14 more or are we --
15 OBJ MR. DOUGLAS SULMAN: Only that I repeat
16 my objection. The only objection is --
17 COMMISSIONER SIDNEY LINDEN: Yes.
18 MR. DOUGLAS SULMAN: There's no objection
19 to asking the Minis -- the former Minister what he would
20 do if he were placed in the same situation.
21 COMMISSIONER SIDNEY LINDEN: Yes. Yes.
22 MR. DOUGLAS SULMAN: But, speaking of
23 crossing lines, the line is crossed when you then ask the
24 Minister, Well -- or the former Minister, Well what was
25 the action appropriate that -- it may not be put in those

183

1 exact words, I know My Friend will be much smoother than
2 that, but asking him to critique or comment on, from an
3 opinion point of view, the actions that Mr. Rosenthal
4 will then put forward as the facts of Mr. Beaubien's
5 conduct, or alleged conduct.
6 It's fine to ask him what he would do.
7 COMMISSIONER SIDNEY LINDEN: Yes.
8 MR. DOUGLAS SULMAN: It's not fine to go
9 to that other level. Now people have been asked in the
10 past but you'll remember that they were the Attorney
11 General of Ontario at the time.
12 COMMISSIONER SIDNEY LINDEN: And the
13 Solicitor General.
14 MR. DOUGLAS SULMAN: The Solicitor
15 General of Ontario. And I can't recall, specifically,
16 whether Mr. Taman, who was the Deputy Minister of the
17 Attorney General's office, those questions.
18 Those people may well have been qualified
19 to ask those questions. I didn't object at that point.
20 This Minister -- this individual's responsibility as
21 Minister was not in those areas.
22 COMMISSIONER SIDNEY LINDEN: Well, I
23 think --
24 MR. DOUGLAS SULMAN: So he can say what
25 he would do but he can't critique what --

184

1 COMMISSIONER SIDNEY LINDEN: I think it's
2 enough for your purposes to get him to say what he would
3 do.
4 MR. PETER ROSENTHAL: I don't think
5 there's a big difference.
6 COMMISSIONER SIDNEY LINDEN: No, I don't
7 think so.
8 MR. PETER ROSENTHAL: But I should like
9 to express it very clearly, this is not a test of Mr.
10 Beaubien, this is a test to Mr. Hodgson. And I could --
11 I could make up hypothetical examples, I can say, Suppose
12 a policeman was in this situation, and so on.
13 But rather than make up hypothetical
14 examples, I'm going to take some, perhaps, real examples
15 and we'll see what Mr. Beaubien says about them.
16 COMMISSIONER SIDNEY LINDEN: Not --
17 MR. PETER ROSENTHAL: But this is not a
18 test of Mr. Beaubien, not asking him a opinion of Mr.
19 Beaubien, it's testing Mr. Hodgson's understanding of
20 this line.
21 COMMISSIONER SIDNEY LINDEN: All right.
22
23 CONTINUED BY MR. PETER ROSENTHAL:
24 Q: So, with that background, sir, I hope
25 you can just answer the question, from your

185

1 understanding, of where this line should be drawn between
2 politicians and police officers.
3 Now, given your understanding, if it is
4 18:42 on September 6th, 1995, and there's a command post
5 of officers from the OPP dealing with Ipperwash
6 Provincial Park, and in particular, Incident Commander
7 Carson is present, and for the sake of this, either way,
8 whether -- whoever invites whom to that meeting, if a
9 member of the Provincial Parliament is at such a
10 gathering and conveys certain things, I should like to
11 ask you your opinion as to how that affects the line,
12 okay? Now, how that relates to your line.
13 Now, one -- the first such thing is the
14 following; communicating the information that the Premier
15 is in constant touch and there's good communication.
16 Now, would you agree with me, sir, that
17 there is great danger that that would put an incident
18 commander under great pressure to feel that the Premier
19 is watching him, if you communicated, Premier's in
20 constant touch, good communications?
21 A: So, this is a hypothetical --
22 Q: Take it as a hypothetical if you
23 like, sir.
24 COMMISSIONER SIDNEY LINDEN: Just before
25 you answer the question, Mr. Hodgson.

186

1 Yes, Ms. McAleer...?
2 MS. JENNIFER MCALEER: Sorry, I'm just
3 perhaps a little confused by Mr. Rosenthal's question.
4 He said the Premier's in constant touch and then he also
5 said something about, overlooking the -- the operations.
6 I -- I'm not quite sure if the Premier is
7 supposed to be in constant touch in Mr. Rosenthal's
8 hypothetical with Mr. -- or unnamed MPP, or if he's
9 supposed to be in constant touch with unnamed police
10 officer or who, in this hypothetical, the Premier's
11 supposed to be --
12 COMMISSIONER SIDNEY LINDEN: So you want
13 some more precision.
14 MS. JENNIFER MCALEER: I do. Thank you.
15 MR. PETER ROSENTHAL: I'm very happy to
16 try to clarify and I was attempting to be as clear as
17 possible, but I often don't succeed.
18
19 CONTINUED BY MR. PETER ROSENTHAL:
20 Q: Suppose that the MPP communicates to
21 the incident commander that the Premier is in constant
22 touch, implying with him, and there's good
23 communications.
24 Now, my question there -- would -- was:
25 Would you agree that there is serious danger --

187

1 A: Hmm hmm.
2 Q: -- that that might pressure the
3 incident commander in such an operational situation?
4 A: Well, I can tell you hypothetically
5 that --
6 Q: Hypothetically.
7 A: I would have only gone to a meeting
8 with the OPP if they invited me.
9 Q: Yes.
10 A: And I would have assumed it was for
11 information that I needed to know.
12 The rest of your question, I wouldn't have
13 done that.
14 Q: But, I'm talking now not about them
15 giving you information, but --
16 A: I realise that.
17 Q: -- the MPP giving them information
18 that he Premier's in constant touch.
19 A: No, I would not.
20 Q: And you would think that might be
21 crossing the line, that you understand, between
22 politicians and police, right?
23 A: Personally I would, but that's just
24 my opinion.
25 Q: Yes.

188

1 COMMISSIONER SIDNEY LINDEN: That's what
2 you're being asked for, so that's fine.
3 THE WITNESS: Yeah.
4
5 CONTINUED BY MR. PETER ROSENTHAL:
6 Q: I'm asking you for your
7 understanding, sir. Now, what about communicating to --
8 at that kind of a meeting, to the incident commander the
9 concept that if the matter is not appropriately handled
10 by the police, they might do something like calling in
11 the Military.
12 Would you agree with me that that might
13 pose a great danger of putting improper pressure from the
14 politician on the incident commander?
15 A: So, you're asking me hypothetically,
16 if I was at a meeting that I'd been invited to with the
17 OPP, and I was to volunteer the information we'd call in
18 the military? I wouldn't do that.
19 Q: And you would think that might be
20 crossing that very crucial line between politicians and
21 police, right?
22 A: Yes.
23 Q: Now, last question of that type.
24 What about in the same kind of context, giving the
25 incident commander the understanding that it was your

189

1 view that they should be out of the Park, that the people
2 occupying the Park should be out of the Park?
3 Can I ask you, would -- in your view,
4 would that cross the line putting political pressure on
5 police officers?
6 A: If I was talking to police officers
7 about operational responsibilities, I believe that would
8 be crossing the line.
9 Q: Thank you.
10 A: That'd be a direction.
11 Q: I'm sorry?
12 A: I believe that would be direction.
13 Q: Thank you.
14 A: That's why I wouldn't do it.
15 Q: Now, at some point in the course of
16 this did you get the understanding that while the
17 Government could not direct OPP officers to remove the
18 occupiers MNR, as the property owner, could request that
19 the OPP remove them? Was that your understanding?
20 A: No, I did not.
21 Q: Sorry?
22 A: No, I did not.
23 Q: You did not get that understanding?
24 I see.
25 Well, if we could please look at your Tab

190

1 16, which is Exhibit P-509 to these proceedings, and
2 Inquiry Document Number 1012252. And that exhibit and
3 document number includes minutes of the two (2)
4 Interministerial Committee Meetings.
5 Looking at the one for September 6th and
6 page 2 thereof, so that's -- go to the back of that
7 binder. Do you have that, sir?
8 A: Yes.
9 Q: So -- and page 2 --
10 A: Where --
11 Q: Sorry. Page 2.
12 A: Page 2, yeah.
13 Q: And towards the bottom; that's what I
14 wish to look at.
15 A: Okay.
16 Q: Under Communications, and it says:
17 "It was agreed that MNR, as the Park's
18 owner and steward, will continue to be
19 the Ministerial spokesperson regarding
20 the occupation of Ipperwash Provincial
21 Park."
22 You've already told us the difficulty that
23 you have with that.
24 A: I must be on the wrong Tab. Or you
25 said Tab 16?

191

1 MR. PETER LAUWERS: Towards the back of
2 the Tab.
3 THE WITNESS: Towards the back of the
4 Tab. This is page 2 towards the back of the tab?
5
6 CONTINUED BY MR. PETER ROSENTHAL:
7 Q: Yeah. There's a four (4), a heading,
8 4. Communications?
9 A: Right. I've given testimony to this
10 before, yes.
11 Q: Yes, thank you. So, under
12 Communications it says:
13 "It was agreed that MNR, as the Park's
14 owner and steward will continue to be
15 the Ministerial spokesperson regarding
16 the occupation of Ipperwash Provincial
17 Park."
18 Do you see that, sir?
19 A: Yes, and I disagree with that.
20 Q: Yes, you've told us quite forcefully
21 that you disagreed with that.
22 A: Hmm hmm.
23 Q: But then further on, there's a --
24 there are some bullet points and the second bullet point
25 says:

192

1 "Police have been asked to remove the
2 occupiers from the Park."
3 Now, to assist you I'll read to you some
4 of the testimony of Mr. Vrancart. And so with your
5 assistance, this is October 27 at page 202.
6
7 (BRIEF PAUSE)
8
9 Q: I should like to begin...
10
11 (BRIEF PAUSE)
12
13 Q: ...with -- about line 6. Mr.
14 Vrancart was looking at the same document that you are,
15 and at line 21 it reads as follows:
16 "That's want I wish to fasten on. That
17 was part of the message, that police
18 have been asked to remove the occupiers
19 from the Park.
20 Yes, it was.
21 Q: And that was true was it? I mean
22 the police had been asked to remove the
23 occupiers from the Park.
24 A: Yes, they were, on the basis that
25 they were trespassing on private

193

1 property.
2 Q: Yes, yes. And in fact, earlier
3 you told us about Mr. Kobayashi serving
4 a trespass notice and you were asked
5 why, I forget which counsel, perhaps
6 Commission Counsel, as to whether that
7 was in connection with the injunction
8 application and you indicated that it
9 was your understanding it was for
10 trespassing purposes, right?
11 A: That's correct.
12 And serving that trespass notice was
13 done in order to have the basis for
14 arresting people for trespassing should
15 the OPP choose to do so?
16 A: That's my understanding, yes.
17 Q: And the MNR, as the owners and
18 occupiers of the Park, did make the
19 request that the OPP remove the
20 occupiers from the Park?
21 A: Yes."
22 So, that's Mr. Vrancart's evidence on this
23 issue.
24 A: Yes.
25 Q: Now, are you telling us that you

194

1 don't remember the MNR making the request of the OPP that
2 they remove the occupiers from the Park?
3 A: No. I agree with that testimony.
4 Q: You do agree with that?
5 A: I do agree. But what I answered
6 hypothetically, maybe I misunderstood the question --
7 Q: Sorry. I'm sorry, sir. But -- but--
8 A: -- was would I give direction to an
9 operational police officer, and I said no, I wouldn't.
10 Q: Now, did -- so you do recall MNR, as
11 owners and occupiers of the Park, requesting of the OPP
12 that they remove the occupiers from the Park, right?
13 A: I think we -- I believe that was
14 clearly understood that that wasn't me giving direction
15 to an operational police officer.
16 Q: No, no.
17 A: That was through the proper channels
18 as I recall.
19 Q: But you do recall that happening?
20 A: I recall that that's the whole
21 purpose of talking about the injunction. The Attorney
22 General and the police felt they needed an injunction to
23 deal with this situation and I agreed with that.
24 Q: Well, sir, let's look very carefully
25 again at Mr. Vrancart's evidence, because this is

195

1 different from the injunction as Mr. Vrancart clearly
2 explains, sir.
3 This was to provide a different
4 possibility; the possibility for arresting for trespass.
5 Let's look again if we may, sir, carefully, beginning at
6 line 5 on page 203.
7 "Earlier you told us about Mr.
8 Kobayashi serving a trespass notice and
9 you were asked by, I forget which
10 counsel, perhaps Commission counsel, as
11 to whether that was in connection with
12 the injunction application.
13 And you indicated that it was your
14 understanding it was for trespassing
15 purposes, right?
16 A: That's correct.
17 Q: And that serving that trespass
18 notice was done in order to have the
19 basis for arresting people for
20 trespassing should the OPP choose to do
21 so.
22 A: That's my understanding, yes. And
23 the MNR, as the owners and occupiers of
24 the Park ,did make the request that the
25 OPP remove the occupiers from the Park?

196

1 A: Yes."
2 Now, just to make it crystal clear, sir,--
3 A: Hmm hmm.
4 Q: -- and there's a lot of evidence that
5 you, just coming in don't know and you're not a lawyer
6 and I should like it to be crystal clear to you, sir.
7 There is a statute in Ontario called the
8 Trespass to Property Act. And one can be charged with
9 contravening that Act. No injunction.
10 A: Hmm hmm.
11 Q: One of the ways that one can be a
12 trespasser is if the owner or occupier of the property
13 says to that person, I don't want you here, okay? Take
14 it from me; that's the law, okay?
15 A: Okay.
16 Q: So, if the police are aware that an
17 owner or occupier has told someone to leave their
18 property, the police then would have the authority to
19 arrest that person for trespassing. Remove them from the
20 property and arrest them and charge them with
21 trespassing, okay?
22 A: Yes. I was aware of that.
23 Q: So that was one -- I'm sorry, sir?
24 A: I was aware of that --
25 Q: Yes, okay.

197

1 A: -- that that had taken place.
2 Q: Yes, okay, but I'm just trying to
3 clarify, sir. And that was one of the options apparently
4 that was kicking around as a way of dealing with the
5 persons in the Park.
6 A: Hmm hmm.
7 Q: A second option was to get a court
8 injunction.
9 A: Hmm hmm
10 Q: And if the injunction then contained
11 an order that the people had to leave the Park, then
12 enforcement of that injunction would remove them from the
13 Park.
14 There are several possible ways that they
15 could have gotten removed from the Park, okay?
16 Now, the serving of the trespass notice
17 and the making of the request of the OPP that they remove
18 them from the Park was to allow, according to Mr.
19 Vrancart's testimony, the first option, doing it without
20 an injunction, okay? Do you understand that, sir?
21 A: Yes.
22 Q: Okay. Now, my question is: Were you
23 aware that that was done then that the MNR by serving the
24 trespass notice and making that request of the police,
25 provided the possibility that they could just arrest them

198

1 without an injunction?
2 A: I was aware that there had been an
3 attempt to serve a trespass notice by Les Kobayashi and
4 the OPP.
5
6 Q: And were you aware that that was done
7 for the purpose of providing a basis, should they choose
8 to do so, for the OPP to arrest the people prior to they
9 -- or without there being an injunction?
10 A: I'm assuming that, yes.
11 Q: You -- and you assumed it at the
12 time?
13 A: Yes.
14 Q: You understood that at the time?
15 A: Yes. I was informed that that had
16 taken place.
17 Q: And how -- what is your understanding
18 of how the request that the OPP remove the occupiers from
19 the Park was made?
20 A: I'm assuming it was done according to
21 all the proper protocols. It was done with the direction
22 of my Deputy Minister.
23 Q: And you have no knowledge as to how
24 it was actually done?
25 A: Not specifically, no.

199

1 Q: But would you agree, sir, that it
2 might, in some circumstances at least, be a rather subtle
3 difference, the difference between -- for politicians to
4 be telling people to remove people from the Park, and for
5 politicians to be requesting that the OPP remove people
6 from the Park?
7 That could be a subtle difference in some
8 cases, could it not, sir?
9 A: I agree.
10 Q: And wouldn't it be crucial, then, to
11 understand exactly how any such message was delivered, in
12 order to ensure that you were not crossing the line and
13 directing police officers improperly?
14 A: I had full confidence in my deputy
15 minister and the senior officials in the Ministry. I was
16 informed that this had taken place after the fact and I
17 had full confidence that they would have followed all the
18 proper procedures.
19 Q: You were informed only after the fact
20 that they were -- that that had been done?
21 A: That's correct.
22 Q: You did not authorize it before it
23 was done?
24 A: I wasn't asked. I would have agreed
25 with their recommendation, though.

200

1 Q: So you weren't asked beforehand
2 whether a Trespass Notice should be served?
3 A: No, I was not.
4 Q: You were the Minister and this was
5 done in the context that we've all heard about, and your
6 Ministry was serving a Trespass Notice and you were not
7 even asked about it?
8 A: No, it was an operational matter of
9 the OPP on the ground. They would have requested the
10 local staff on the ground that they be of assistance.
11 Q: I see, so that was an OPP operational
12 matter, the serving of the Trespass Notice, in your view?
13 A: Well, I -- that's my assumption.
14 Q: I'm sorry?
15 A: That's my assumption. It was their
16 request --
17 Q: That's your assumption, I see.
18 A: -- that these are some of the things
19 they would need.
20 Q: So you didn't know about it ahead of
21 time --
22 A: No, I didn't.
23 Q: When did you learn about it, sir?
24 A: I would have known about it on the
25 5th or the -- probably the 5th or 6th.

201

1 Q: 5th or 6th?
2 A: Yeah.
3 Q: And did you learn at that time how
4 this request was made that -- of the OPP that they remove
5 them?
6 A: No, I do not.
7 Q: Did you ever learn that?
8 A: No.
9 Q: You don't know to this day?
10 A: I've always -- I've always had full
11 confidence in the -- my Deputy Minister and my senior
12 officials that they would follow all the proper protocols
13 and procedures.
14 Q: But you thought the OPP did it or the
15 Deputy Minister did it or you had no idea who did that,
16 did you?
17 A: Well, I knew the Deputy Minister was
18 overseeing it.
19 Q: You thought he was overseeing how --
20 A: Well, he had told me about it, so I
21 would have full confidence in his ability to make sure
22 that anything from our side was handled properly, in
23 terms of --
24 Q: When did he tell you about it?
25 A: -- our side being the MNR.

202

1 Q: Sorry, sir, when did he tell you
2 about it?
3 A: Well, whenever I learned about it, he
4 was the one that told me.
5 Q: When did he tell you about it, sir?
6 A: It would be on the 5th or the 6th, I
7 can't recall, specifically.
8 Q: Now, was that a meeting, a formal
9 meeting with Mr. Vrancart?
10 A: It would have been a briefing.
11 Q: Would you have any notes about that,
12 sir?
13 A: Yes, it's referenced in briefing
14 notes.
15 Q: Could you turn us to it, sir?
16 A: That I've read in preparation for
17 this discovery as well.
18 Q: I'm sorry?
19 A: That I've read in this preparation
20 for this Inquiry.
21 Q: I'm sorry, sir, could you refer me to
22 what you're thinking of, please?
23 A: I think there's a paper record of it
24 here someplace.
25 Q: Of Mr. Vrancart informing you that we

203

1 have made the request of the OPP that the occupiers be
2 removed from the Park?
3 A: No, specifically that there was a
4 Trespass Notice that was attempted to be served by Les
5 Kobayashi and the OPP.
6 Q: I see. What about the --
7 A: And that nobody would receive it, is
8 my understanding.
9 Q: Are you aware of any documentation
10 that you were given the information that there had been a
11 request that the OPP remove the occupiers from the Park?
12 A: Can you repeat the question?
13 Q: Let me ask you a preliminary
14 question. Were you given the information that MNR,
15 through some channel, had made a request of the OPP that
16 they remove the occupiers from the Park?
17 A: No, I wasn't. I was probably on the
18 road in Haliburton to come into Toronto. And so --
19 Q: Were you ever given that in -- sorry.
20 Were you ever given that information, sir?
21 A: Not that I'm aware of.
22 Q: So, I'm the first person telling you
23 that?
24 A: No, I've known -- in our notes, in
25 preparation for this Inquiry, that --

204

1 Q: I see --
2 A: -- there was a Trespass Notice that
3 was attempted to be served.
4 Q: So the fact that the MNR, as the
5 owners and occupiers of the Park, were going to make and
6 then did make a request of the OPP that they remove the
7 occupiers from the Park was not known to you until
8 preparation for this Inquiry?
9 Is that your evidence, sir?
10 A: No, I answered it earlier, that I was
11 informed and I was aware that they'd attempted to serve a
12 Trespass Notice either on the 5th or the 6th of September
13 '95, and it's also referenced in some of the briefing
14 notes or background information.
15 And it might be under Tab 16, it's the --
16 Q: Excuse me, sir.
17 A: -- preparation for the press --
18 Q: Excuse me, sir. Sorry, just to save
19 some time. You're answering a different question. May I
20 just clarify please?
21 A: All right.
22 Q: There are two (2) different issues,
23 okay? One is the serving of the trespass notice, right?
24 And that's issue number 1. I'm not asking you about
25 that, okay?

205

1 A: Okay.
2 Q: Second issue is requesting of the OPP
3 that they remove the occupiers from the Park; that's what
4 I'm asking you about, okay? Now --
5 A: Okay.
6 Q: -- did I not understand you
7 correctly, sir, a few moments ago, in saying that the
8 second thing, the request by MNR that the OPP remove
9 persons from the Park, was something that you only
10 learned about in preparation for this Inquiry, looking
11 through these documents?
12 A: No, I would have known in advance. I
13 don't know the specifics on how it was done.
14 Q: Well, how did you learn that
15 information?
16 A: There would have been discussions at
17 the time that the MNR was the legal landowner.
18 Q: Do you know, to this day, who
19 conveyed that request to the OPP that they remove the
20 occupiers from the Park?
21 A: No, I do not.
22
23 (BRIEF PAUSE)
24
25 Q: Do you know the name Commissioner Tom

1 an exhibit, I would suggest it should be.
2 COMMISSIONER SIDNEY LINDEN: I think it
3 is an exhibit.
4 MS. SUSAN VELLA: Yes it is, it's Exhibit
5 P-976.
6 COMMISSIONER SIDNEY LINDEN: It's Exhibit
7 976.
8 MR. PETER ROSENTHAL: Sorry, I missed --
9 P-976. Thank you.
10
11 CONTINUED BY MR. PETER ROSENTHAL:
12 Q: Do you have that in front of you,
13 sir?
14 A: Yes, I do.
15 Q: Perhaps I should begin with the end,
16 to show your involvement in it, and then go forward, not
17 -- the end of the first page. Sorry.
18 The last bullet point on the first page
19 says:
20 "Questions about the Park involve
21 management of the Park under the
22 Provincial Parks Act, therefore, I
23 shall refer your questions to the
24 Minister of Natural Resources the
25 Honourable Chris Hodgson."

208

1 So you didn't want to be a spokesperson
2 about the incident, but you couldn't avoid speaking about
3 the Park, to some extent, in the course of this because
4 the Park was controlled by your ministry; isn't that
5 fair?
6 A: Yeah. I've testified to that effect,
7 yes.
8 Q: Now, moving up, then, on that page,
9 though, under, "Suggested Response," the second bullet
10 point reads:
11 "Once the illegal occupation of the
12 Park has ended, Ontario is prepared to
13 cooperate, in any process, to
14 investigate the existence of a burial
15 site in the Park."
16 Now, we've heard other evidence that once
17 the, as The government termed it, "illegal occupation,"
18 has ended, there can be negotiations, and so on?
19 A: And this is a --
20 Q: Now --
21 A: -- House note for the Minister
22 Responsible for the Ontario Native Affairs Secretariat?
23 Q: Yes.
24 A: All right. Okay.
25 Q: Now, sir, the Park was under your

209

1 ministry; is that correct?
2 A: That's correct.
3 Q: Would you agree with me that you
4 would have the responsibility, if anyone brought you any
5 allegation of a burial ground or anything special with
6 respect to the Park, you and your ministry would have the
7 responsibility of investigating that allegation; is that
8 fair?
9 A: That's fair.
10 Q: And, in particular, independent of
11 any occupation or anything, if some persons had brought
12 to your attention the concerns that there might be First
13 Nations burial sites within a Park, it would be your
14 responsibility to investigate that and deal with it
15 appropriately?
16 A: Well, that's -- it would actually
17 come under the Cemeteries Act, which is another Ministry.
18 But our staff would have been expected to make sure that
19 that process was initiated.
20 Q: Yes. The Cemeteries Act would govern
21 what happens --
22 A: And how it's done.
23 Q: -- to a burial.
24 A: That's right.
25 Q: But, as something going on in the

210

1 Park that you're responsible for, you'd be responsible to
2 investigate that and see how it related to the Cemeteries
3 Act, and so on, and you'd have assistance of other
4 Ministries in respect of the legalities of that; is that
5 fair?
6 A: Yeah, there's a bullet point on this
7 page that actually explains that relationship.
8 Q: Okay. Now, this is correct in
9 indicating that it was the position of the Government, at
10 that time, that they would not investigate the existence
11 of a burial site until the people were out of the Park;
12 is that correct?
13 A: No, my understanding was it was more
14 operational than that. It was the, Could you conduct a
15 burial site investigation while the occupation was
16 underway, would it be safe, would you be allowed to have
17 access, and that was my understanding.
18 Q: So, your understanding was that there
19 was a problem with getting access?
20 A: That's my understanding, that...
21 Q: And was it your understanding that
22 someone had approached the people in the Park and said,
23 We'd really like to investigate the question of burials
24 in the Park and would you co-operate with us?
25 A: That's my understanding that that

211

1 would have taken place.
2 Q: And who made that approach, sir?
3 A: My understanding is that Lloyd
4 Girman, one of the issues he was going to explore, was a
5 burial site and the possibility of finding a burial site
6 at some point, some process to do that.
7 Q: And who was Lloyd Girman?
8 A: He was a negotiator/mediator that was
9 hired in '96, the Spring, May, I believe. I may be
10 wrong.
11 Q: In '96?
12 A: Yes.
13 Q: Sir, can we go back to September
14 1995. I'm asking you about a document dated September
15 20th, 1995, sir. Okay?
16 A: Yes.
17 Q: And is it not true that this reflects
18 the position of the Government, at that time, that they
19 would not even begin an investigation of the possibility
20 of a burial site until the occupation had ended?
21 A: I don't --
22 Q: Is that not correct?
23 A: I don't recall that. It could be,
24 I'm not denying it. It's just that I don't recall that.
25 Q: But it would have been your

212

1 responsibility to deal with that, would it not, sir?
2 A: It would have been and my opinion was
3 that we were open to that. So if you're telling me
4 different, that's the first I've heard of that.
5 Q: Well, would you agree with me that
6 this paragraph, that I've just read to you, suggests that
7 the Government was not open to it, in saying, Once the
8 occupation has ended, they'd be prepared to co-operate in
9 an investigation?
10 A: Then I'll defer to that bullet point,
11 but that --
12 Q: I'm sorry?
13 A: I'll defer to that bullet point, but
14 that's --
15 Q: Yes.
16 A: -- ten (10) years ago. That wasn't
17 my recollection of it.
18 Q: Yes, but -- but it's very clear that
19 the Government was taking the position, We won't
20 investigate burial sites until the occupation has ended,
21 right?
22 A: It wasn't my understanding, but I'll
23 defer to this briefing note that I hadn't seen before
24 this Inquiry.
25 Q: But that's completely consistent with

213

1 what you told me a little while ago about the
2 Government's view of protests and occupations; you're not
3 going to deal with them, right?
4 A: Not on some of the underlying issues.
5 We dealt with the water system --
6 Q: Yes.
7 A: -- we were trying to deal with their
8 request around the Federal Government's inaction on the
9 military base. And the potential gravesite I viewed as
10 the same type of issue, it was an underlying issue that
11 we could work together; I had no objection to that.
12 Q: Wasn't the feeling of the Harris
13 Government that it didn't want to be seen to be yielding
14 to protesters at all, and therefore, they would not give
15 in to any demands until the protest was over.
16 Isn't that true?
17 A: That's not my understanding.
18 Q: Not your understanding?
19 A: No.
20 Q: I see. But you do agree that this
21 clearly says they won't investigate burial sites until
22 the occupation ends, right?
23 A: I'll agree that's what that says, but
24 that wasn't my understanding.
25 Q: Okay. If we could look at Tab 42,

214

1 Inquiry document number 30001383. Now it's, as far as I
2 can tell, also this is not an exhibit, but I'm not so
3 confident saying that as I was earlier; perhaps it is.
4 MS. SUSAN VELLA: Sorry, what tab is
5 that?
6 MR. PETER ROSENTHAL: Sorry?
7 MS. SUSAN VELLA: What tab?
8 MR. PETER ROSENTHAL: It's Tab 42.
9 MS. SUSAN VELLA: I don't think it's a --
10 I don't think it's an exhibit.
11 MR. PETER ROSENTHAL: So, My Friends,
12 Commission Counsel, agree with me with this time, Mr.
13 Commissioner, it's not an exhibit.
14 This is a -- a document, which I
15 understand from the front pieces on September 21st, 1995,
16 and it's headed -- it seems to be part of a document that
17 I have here, it's, b) Questions to be Referred to
18 Minister of Natural Resources, the Honourable Chris
19 Hodgson.
20 Do you have that in front of you, sir?
21 A: No, I've got the one that says,
22 "Prepared for the Honourable Charles Harnick." Is it
23 after that?
24 Mine says, "Kettle and Stony Point --"
25 Q: Sorry.

1 Prepared for the Honourable Charles Harnick."
2 COMMISSIONER SIDNEY LINDEN: Right.
3 MR. PETER ROSENTHAL: So thank you.
4 Sorry for that confusion, Mr. Commissioner.
5 MR. PETER LAUWERS: Excuse me. Is -- is
6 this -- is the final version of this document an exhibit?
7 This is a draft, and I'm a little concerned about a draft
8 being put to the Witness.
9 MS. SUSAN VELLA: Well, we -- perhaps we
10 could get Exhibit P-760? Could I have --
11 THE REGISTRAR: 7?
12 MS. SUSAN VELLA: 60. And we'll try to
13 sort this out right now.
14 THE WITNESS: Do you want to have a
15 break?
16 COMMISSIONER SIDNEY LINDEN: We're pretty
17 close to a break. Would this be a good time for a break?
18 MR. PETER ROSENTHAL: I'm in your hands,
19 sir. It might waste less time if we break now, yes.
20 COMMISSIONER SIDNEY LINDEN: Do you have
21 some idea, Mr. Rosenthal of how far you are and how much
22 more you've got?
23 MR. PETER ROSENTHAL: Can -- can I tell
24 you that when I resume?
25 COMMISSIONER SIDNEY LINDEN: Sure.

219

1 MR. PETER ROSENTHAL: Because -- because
2 I'll consider that over the break --
3 COMMISSIONER SIDNEY LINDEN: We will take
4 the break and then --
5 MR. PETER ROSENTHAL: -- and I shall try
6 to be as expeditious as --
7 COMMISSIONER SIDNEY LINDEN: Thank you.
8 THE REGISTRAR: This Inquiry will recess
9 for fifteen (15) minutes.
10
11 --- Upon recessing at 2:43 p.m.
12 --- Upon resuming at 3:00 p.m.
13
14 THE REGISTRAR: This Inquiry is now
15 resumed. Please be seated.
16 MS. SUSAN VELLA: Mr. Commissioner, just
17 before the break we were discussing document Exhibit P-
18 1022 which reflected questions and answers document. We
19 were able to locate a later version of the same document.
20 It's already been entered as Exhibit P-
21 760, Inquiry Document 1012041. And Mr. Rosenthal was
22 able to review this document and the parts that he's
23 going to refer to are worded verbatim, the same as in the
24 -- the other Exhibit P-1022.
25 So, as a result, we respectfully request

220

1 that we withdraw the Exhibit P-1022 and that the -- the
2 questions will be directed with reference to Exhibit P-
3 760.
4 COMMISSIONER SIDNEY LINDEN: Thank you
5 very much. Mr. Clerk, can withdraw 1022, thank you.
6 THE REGISTRAR: Sobeit.
7
8 CONTINUED BY MR. PETER ROSENTHAL:
9 Q: You can still use that same page that
10 you had -- you had open I believe, sir, the --
11 A: Which tab?
12 Q: The one -- it has -- it's at your Tab
13 42 and it's the page that is headed, b) Questions to be
14 referred to Minister of Natural Resources, the Honourable
15 Chris Hodgson, which is I believe by Ms. Vella's count,
16 five (5) pages in.
17 MS. SUSAN VELLA: Yes.
18 THE WITNESS: Yes.
19
20 CONTINUED BY MR. PETER ROSENTHAL:
21 Q: Do you have it, sir?
22 A: Yes, I do.
23 Q: Not only in all important respects
24 but in all respects as far as I can tell this is exactly
25 the same.

221

1 So, a document of this type means that if
2 questions arise in either the House or from the media,
3 these ques -- these are the kind of questions that would
4 be referred to you; is that correct?
5 A: This is a briefing note prepared for
6 Charles Harnick. I've never seen this.
7 Q: But, what this means is that any ques
8 -- these questions -- if he were asked these questions,
9 he would say, Please ask Minister Hodgson those
10 questions, right?
11 A: That's correct.
12 Q: So, they must have at the time warned
13 you that you'd be asked questions like this in --
14 A: I would assume so and --
15 Q: -- right?
16 A: -- I believe at the time I would have
17 had answers.
18 Q: I'm sorry?
19 A: I would have had answers in my head
20 at the time?
21 Q: Yes.
22 A: To any one of those queries.
23 Q: Yes, and I want to find out what
24 remains ten (10) years later, and I realize it's
25 difficult.

222

1 But this is, I believe, then September
2 21st, 1995 still. Is that the new document as well?
3 MS. SUSAN VELLA: No. The new document--
4 MR. PETER ROSENTHAL: Or September 25th?
5 MS. SUSAN VELLA: Actually, it's the
6 22nd.
7 MR. PETER ROSENTHAL: 22nd, sorry.
8
9 CONTINUED BY MR. PETER ROSENTHAL:
10 Q: What I'm interested in is, that after
11 September 20, and I pointed you to a document on
12 September 20 which indicated that the investigation of
13 burial sites in the Park would not begin until after the
14 so-called illegal occupation.
15 And then I'm going to point to another
16 document on September 26th. Now, this is in between
17 those two (2).
18 A: Okay.
19 Q: Now, at this time then -- September
20 22 is the actual date of the document or the draft might
21 have been a day earlier, so around those days, September
22 20, 21, 22.
23 I want to ask you only about a couple of
24 these questions that were to be referred to you. And the
25 first one is, the question:

223

1 "What research is Ontario undertaking
2 to ascertain the existence of an old
3 Indian burial ground being contained
4 within the Park?"
5 So, we looked at a document from a day or
6 two (2) before this that indicated there would be no
7 investigation until the occupation ended.
8 So, what would you then, in that context,
9 answer to the question, "What research is Ontario
10 undertaking?"
11 A: I don't recall being asked this
12 question and if I had, my answer would have conflicted
13 with your earlier note.
14 Q: And you would have said what?
15 A: My understanding is that the MNR had
16 been asked to go back through historical records, and
17 this is particular around the potential for a burial
18 site, and look for any evidence that we had on record.
19 Q: Well, now there's a question of
20 timing here, sir. And you would agree that you're not
21 sure that that happened by September 22nd say, 1995.
22 Would you agree, sir?
23 A: No I couldn't be positive on that,
24 but my understanding was that Ron Vrancart was asking
25 people to do that.

224

1 Q: At some point?
2 A: At some point, yes.
3 Q: At some point in 1995, let's say?
4 A: Yeah, I was sure -- it was around the
5 time that the -- Ron Irwin released those letters --
6 Q: Exactly, yes. We'll turn to that --
7 A: Hmm hmm.
8 Q: -- document then in a little bit, and
9 that's exactly right.
10 A: Yes, so --
11 Q: In fact it was --
12 A: And my full answer to the question
13 would have been that at that time, I believe we knew that
14 the Federal Government was wiling to fund any on the
15 ground research and --
16 Q: Yes.
17 A: -- I wouldn't have had a problem with
18 that if the occupiers want to conduct a -- an
19 investigation. In fact, I've always assumed that they
20 would have.
21 If that was one of the motives for the
22 occupation, then a full investigation of any potential
23 gravesite on the property would have been conducted. And
24 if the Federal Government's going to pay for it, to get
25 the proper expertise, I had no problems with that.

225

1 Q: Right. I think you've actually put
2 your finger on one of the points I wanted to establish,
3 that there was the Federal Government statement that
4 there had been some earlier evidence, years earlier, of a
5 burial site in the ground that was released publicly,
6 right --
7 A: Yes.
8 Q: -- by Mr. Ron Irwin?
9 A: Hmm hmm.
10 Q: And then in response to that, the
11 Government of Ontario said, We'd better check this out,
12 right?
13 A: That was -- it might have even
14 happened before that. I don't know, I can't speak for
15 Ron, but he would know the details a lot better than I,
16 but I know that that brought to light the issue --
17 Q: Yeah.
18 A: -- that we thought, by all means, if
19 there's a gravesite, it should be explored and if it's
20 identified, all the proper steps should be taken and
21 should involve the First Nations.
22 Because there was an occupation, we didn't
23 feel we could go on the ground to do the examination
24 ourselves. But, I've always assumed that the First
25 Nation occupying the Park was conducting that research on

226

1 the ground with the proper experts and funded by the
2 Federal Government.
3 Q: Sir, were you aware that within days
4 of the killing of Dudley George, the people in the Park
5 were cooperating with the Special Investigations Unit in
6 investigating that killing?
7 A: I may have been, yes.
8 Q: Yes. So, there was no indication
9 that they wouldn't cooperate in investigating the
10 possibility of a burial site, was there?
11 A: No, not that I know of, no.
12 Q: No.
13 A: I just assumed they would want to
14 conduct the investigation themselves and it was funded by
15 the Federal Government; that's my assumption.
16 Q: And in fact, it was the position of
17 the Ontario Government, as reflected in the earlier note,
18 that no investigation of burial sites would be begun as
19 long as the so-called illegal occupation was continuing.
20 But that position changed upon the Federal Government
21 revealing the existence of earlier documentation of
22 burial sites.
23 Isn't that fair, sir?
24 A: Not that I'm aware of, no. That's
25 ONAS' position in their statement. I wasn't made aware

227

1 of that, to my recollection.
2 Q: Well, at any point in September of
3 1995, what would your answer have been to the second
4 question that was to be referred to you, according to
5 this document; Are there burial grounds within the Park?
6 A: I would have said we're not sure.
7 We're open to an investigation, if the First Nation wants
8 to explore the ground. We would have been that way
9 before the occupation as well.
10 Q: Okay. If we could turn to the next
11 tab, which is Inquiry document number 1010587, Exhibit P-
12 302, I believe.
13 COMMISSIONER SIDNEY LINDEN: Mr.
14 Rosenthal, before we came back, I mentioned that I was
15 going to ask you how long you expected to be --
16 MR. PETER ROSENTHAL: Yes.
17 COMMISSIONER SIDNEY LINDEN: And I just
18 forgot. So is this a break? I can do it now. I don't
19 want to interrupt you.
20 MR. PETER ROSENTHAL: And had you
21 remembered, I would have asked -- answered an hour to an
22 hour and a half, sir, and I've used up a little bit of
23 that right now.
24 COMMISSIONER SIDNEY LINDEN: That's fine.
25

228

1 CONTINUED BY MR. PETER ROSENTHAL:
2 Q: So, we're at Tab 43.
3 A: Yes.
4 Q: Which is a document entitled,
5 Minister's Note, dated September 26th, 1996, from Ron
6 Vrancart.
7 So, a Minister's note means a document
8 prepared for your information, right?
9 A: Yeah, probably in preparation for the
10 House returning, yes.
11 Q: I'm sorry, in preparation for...?
12 A: For the House returning.
13 Q: I see, yes.
14 A: Yeah.
15 Q: Oh, you judge that based on the date
16 of this or in general that's the situation?
17 A: Just general recollection. Normally
18 -- this looks like a House note, so.
19 Q: I see, yeah. And so that's to
20 prepare you to answer any questions that may arise during
21 Question Period in particular --
22 A: That's right. Or with the media,
23 yes.
24 Q: But it would also prepare you in case
25 any media asked you any questions as well, right?

229

1 A: That's correct.
2 Q: Now, the third bullet point there
3 reads:
4 "The matter of a burial ground on the
5 Provincial Park site is being
6 researched. Prior to the release --
7 recent release of Federal
8 correspondence indicating the burial
9 site may exist, MNR had no knowledge or
10 record that such a site lies within the
11 Park."
12 So, do you recall receiving that
13 information on or about September 26th, 1995?
14 A: I don't recall specifically, but I
15 would assume I received it, yes.
16 Q: I would put it to you this verifies
17 what I put to you a little earlier, that the position of
18 the Government of Ontario changed as a result of the
19 Federal correspondence indicating that a burial site may
20 exist, right?
21 A: No, not at all. I think if a burial
22 site potential was known about, to me or to -- I'm
23 assuming that the proper procedures would have been
24 initiated prior to the occupation or after the
25 occupation.

230

1 Q: Well, you knew even prior to say
2 September 4, 1995 that some of the people in the Park
3 were alleging that there were burial sites in the Park;
4 is that correct?
5 A: No, it's not correct. I was not
6 aware of that.
7 Q: When did you first become aware of
8 their making those allegations?
9 A: I can't be specific but I believe it
10 was around the time of Ron Irwin's arrival. It may have
11 been slightly before then.
12 Q: I see. So, your position is that you
13 as the Minister of Natural Resources did not know that
14 the people in the Park had claimed that there would be
15 burial grounds in the Park prior to the Federal
16 Government releasing its correspondence suggesting
17 earlier documentation of burial sites?
18 A: There may have been rumours to that
19 effect prior to, but not prior to September 4th, 5th or
20 6th.
21 Q: But, certainly prior to September
22 6th, say?
23 A: No, not to my knowledge.
24 Q: In the course of the Interministerial
25 meetings of what you learned then?

231

1 A: No, I'd asked if there was any
2 demands being made to my knowledge. I see by the notes
3 in the Interministerial Committees is that there was
4 references made to it on the 6th, but at the time I
5 wasn't aware of that.
6 Q: Just to clarify, sir, I'm not
7 suggesting any demands, I'm suggesting allegations, on
8 the part of the people, there that were burial sites in
9 the Park.
10 A: I personally was not aware of that on
11 the --
12 Q: Until -- until after Dudley George
13 was killed?
14 A: That's correct.
15 Q: Is that your evidence, sir?
16 A: That's my evidence.
17 Q: Now, if we could turn then please to
18 Tab 67. You'll see a document from the Criminal
19 Intelligence Service of Ontario. It's Inquiry Document
20 Number 1003803, and Exhibit P-1017.
21 This is a letter addressed to the
22 Honourable Michael Harris on April 22nd, 1996. But, if
23 you turn to the second page it's copied to you, and I
24 would say the focus of the letter is on the second page,
25 and it's about you.

232

1 And that...
2
3 (BRIEF PAUSE)
4
5 Q: It is -- Mr. Millar's a slower than
6 usual. He's -- because he's usually so remarkable fast.
7 But, perhaps I'll being reading from it and it shall
8 appear -- thank you.
9 I should like to read to you the first
10 complete paragraph on the second page.
11 "Obviously, Mr. Premier, we are all
12 concerned about public safety and
13 officer safety. However, I must point
14 out on behalf of the policing
15 community, with respect, that the
16 impasse with the Natives is not a
17 police matter as was unfortunately
18 pointed out assuming that the quote is
19 correct as reported, by the Natural
20 Resources Minister, Chris Hodgson.
21 London Press article, Ipperwash Opening
22 Still Unclear, April 19, 1996."
23 Quote:
24 "I can ensure that because of the
25 occupation that's going on, he said in

233

1 an interview, that's a policing matter,
2 it's kind of out of my hands."
3 Now, first off, sir, I should ask you, was
4 that an accurate quotation in the London Free Press, on
5 April 19, 1996, of your remarks?
6 A: I don't know. I can't remember
7 giving the interview.
8 Q: I see. But you have no reason to
9 dispute the accuracy of that quote, do you?
10 A: No.
11 Q: And one reason that you have no
12 reason to dispute it is that that was your view that it
13 was a policing matter; is that right?
14 A: The occupation itself would be, yes.
15 Q: Was it your view that it was a
16 policing matter as to whether or not MNR should assert
17 its right to the Park?
18 A: No, it was more in terms of -- well,
19 it could be one (1) way to phrase it, I suppose. If the
20 season -- I believe the context of the interview is, Are
21 you going to have the Park open this year, and there
22 might have been more questions around other issues but I
23 felt that the occupation itself was a policing matter, so
24 I didn't comment on that.
25 Q: Okay. Well, that'll come up in a

234

1 different context in a little bit. This is handled --
2 headed on the letterhead of the Criminal Intelligence
3 Service of Ontario.
4 Did you know what that was at the time,
5 sir?
6 A: I don't recall getting this letter,
7 either, but --
8 Q: You don't recall getting this letter?
9 A: No. It doesn't mean I didn't, I just
10 don't recall it.
11 Q: Well, sir, now was it common for
12 there to be a letter to the Premier, from someone with as
13 high a title as the Chairman of the Criminal Intelligence
14 Service of Ontario, complaining about something you did?
15 Was that so common, sir?
16 A: No, I wouldn't say that was common,
17 and I also --
18 Q: No.
19 A: -- know Chief Fantino, but I don't
20 recall that letter.
21 Q: Did not Mr. Harris bring this to your
22 attention, sir?
23 A: Not that I can recall, no.
24 Q: What -- as far as you recall, there
25 was no follow through to this letter, whatsoever?

235

1 A: I don't remember getting the letter
2 to begin with. It doesn't mean I didn't, I just don't
3 remember it.
4 Q: The Chairman of the Criminal
5 Intelligence Service of Ontario writes a letter to the
6 Premier saying that what you have done is causing serious
7 difficulty for policing in Ontario.
8 And you don't remember that letter; is
9 that what you're telling us?
10 A: That's what I'm telling you, yes.
11 Q: So can you then tell us, with any
12 assurance, sir, that Mr. Harris did not say, I want the
13 fucking Indians out of the Park --
14 A: Yes.
15 Q: -- if you can't even remember a
16 letter like this?
17 A: No, I remember that meeting.
18 Q: You'd remember that meeting?
19 A: I just don't remember this letter.
20 Q: You wouldn't remember a letter of
21 this type criticizing you to the Premier --
22 A: Well, maybe I did get the letter --
23 Q: -- by Chief Fantino.
24 A: -- but I don't recall it.
25 Q: No, you don't recall it?

236

1 A: No.
2 Q: I put it to you, sir, if your memory
3 is so bad that you don't recall this, we cannot trust
4 your memory very well for anything that happened ten (10)
5 years ago.
6 A: Well, can you prove I received this
7 letter? I don't recall getting it.
8 Q: I can't prove anything, sir, you're
9 the one --
10 A: Well, then why would you draw a
11 conclusion like that?
12 COMMISSIONER SIDNEY LINDEN: Yes.
13
14 CONTINUED BY MR. PETER ROSENTHAL
15 Q: I see. So we -- it may be that this
16 letter was never brought to your attention?
17 A: I have no recollection of it so --
18 Q: Yes.
19 A: -- that's what I would assume.
20 Q: And even though there's a carbon copy
21 to you --
22 A: Hmm hmm.
23 Q: -- and it's addressed to the Premier
24 and it criticizes you --
25 A: Right.

237

1 Q: -- there's a good chance you never
2 saw it. Is that what you're telling us?
3 A: There's a good chance, yeah. I don't
4 recall --
5 Q: Did you --
6 A: -- seeing that.
7 Q: In preparing for this Inquiry, sir,
8 did you become aware of this letter?
9 A: Yes, I did.
10 Q: You did? And is that the first time
11 you became aware of it?
12 A: Yes.
13 Q: So that would have been within a
14 month of today, sir?
15 A: Oh, a couple of days ago, yes.
16 Q: A couple of days ago?
17 A: Hmm hmm.
18 Q: Before then you were not aware of
19 this letter?
20 A: It might be a couple of weeks ago,
21 whenever I was --
22 Q: Before this calendar year?
23 A: Yes.
24 Q: You were not aware of this letter?
25 A: Yes.

238

1 Q: Sorry, I shouldn't have said, "this
2 calendar year," because that's more limiting that I
3 meant. Before the last six (6) months you certainly were
4 not aware of this letter?
5 A: I don't recall it, no.
6 Q: And you remained in the Cabinet for
7 how long after April 22, 1996?
8 A: Until 1993.
9 Q: Until 19...?
10 A: January 13th, I believe it was '93.
11 Q: Well --
12 A: 2003, sorry.
13 Q: Yes. '93 was before you started,
14 right? Wasn't it?
15 A: Yes. Thanks for pointing that out.
16 Q: 2003 was --
17 A: Yes.
18 Q: So you remained in Cabinet for some
19 seven (7) years after this letter was apparently sent to
20 Premier Harris?
21 A: Yes.
22 Q: And you're not aware of the letter
23 until preparation for this Inquiry?
24 A: That's right.
25

239

1 (BRIEF PAUSE)
2
3 Q: Now, you don't recall the interview
4 with the London Free Press, I must suggest that's a lot
5 more understandable, in my view, than your not recalling
6 this letter.
7 But you don't recall the interview, but
8 would you agree, sir, that the quotation attributed to
9 you is a possible quotation in the sense that that would
10 have been your view?
11 A: That would have been my --
12 COMMISSIONER SIDNEY LINDEN: You already
13 asked that question --
14 MR. PETER ROSENTHAL: Yes, but --
15 COMMISSIONER SIDNEY LINDEN: -- and you
16 got that answer. You've gone over it again.
17 MR. PETER ROSENTHAL: I -- I --
18 COMMISSIONER SIDNEY LINDEN: I don't want
19 to interrupt you, but you are repeating yourself.
20 MR. PETER ROSENTHAL: Well --
21 COMMISSIONER SIDNEY LINDEN: Carry on.
22 MR. PETER ROSENTHAL: -- that was the
23 one, sir --
24 COMMISSIONER SIDNEY LINDEN: Carry on.
25 MR. PETER ROSENTHAL: -- with respect.

240

1 (BRIEF PAUSE)
2
3 MR. PETER ROSENTHAL: Now, I had to do
4 that, though, sir, to get back on track. I was --
5 COMMISSIONER SIDNEY LINDEN: Okay.
6 MR. PETER ROSENTHAL: -- distracted by
7 unusual information.
8 COMMISSIONER SIDNEY LINDEN: Yes.
9
10 CONTINUED BY MR. PETER ROSENTHAL:
11 Q: Now, so you regard it as a policing
12 matter, in April 1996, as to what should happen with
13 respect to the occupation of the Park?
14 A: In terms of the occupation, in terms
15 of resolving the issue, in terms of the underlying
16 issues, whether it was the Federal Government's inaction
17 to turn back the military lands, or a potential
18 gravesite, I felt that there was things that we could be
19 helpful on.
20 And the potential of gravesite, I thought
21 was taking place with an examination on the property,
22 with funding of the Federal Government.
23 Q: Now, would you please turn to your
24 Tab 36.
25 This is Inquiry document number 1003722,

241

1 Exhibit P-756.
2 Look at the -- the first page is a fax
3 transmission sheet, I believe. The -- there's a page,
4 then, entitled, "Ontario [parenthesis] (AG and MNR v
5 George et al). Statement to be read to the Court,
6 September 11, 1995."
7 Do you have that in front of you, sir?
8 A: Yes, I do.
9 Q: Now, we understand -- just to put
10 this in context, which you might not fully recall, do you
11 recall that there was an application for an injunction on
12 September 7, 1995, just after Mr. Dudley George had been
13 killed?
14 And then there was a return to Court to
15 deal with that matter on September 11, 1995 and at that
16 point the Government lawyers asked that the injunction be
17 withdrawn?
18 And this, we understand, was the statement
19 that they were to read to the Court explaining why they
20 were withdrawing the injunction, okay.
21 A: Okay.
22
23 (BRIEF PAUSE)
24
25 Q: And, of course, it refers to the

242

1 funeral of Anthony O'Brien George, better known as Dudley
2 George, and states that:
3 "The withdrawal is made out of
4 deference to the tradition of the
5 period of mourning of First Nations
6 people, and out of a desire to avoid
7 any possible inflammation of the
8 situation."
9 Now, I should like to turn you, though, to
10 the second last paragraph:
11 "As matters proceed, it may, of course,
12 become necessary for the Attorney
13 General and the Ministry of Natural
14 Resources to bring a new Motion at a
15 later date, but it is hoped that that
16 will not be necessary."
17 Now, my understanding of that, and I
18 should like to see if it coincides with yours, is that
19 the injunction application was being withdrawn at that
20 point and the idea was there might be some other way that
21 the matter gets resolved.
22 But, if it doesn't get resolved in some
23 other way, might well be that the Attorney General and
24 the Ministry of Natural Resources would bring another
25 injunction application in order to try to get a return of

243

1 what they regarded as MNR property Park, right?
2 Is that your understanding, sir?
3 A: I don't -- I wasn't involved with
4 this injunction, so I have no recollection of the
5 discussion around it.
6 Q: Well, Dudley George was killed late
7 on September 6, 1995. That was -- there was some
8 immediate subsequent events, September 7, 8, 9, 10, 11,
9 the withdrawal of the injunction, and then time went on.
10 And we looked at some documents from September 20 and
11 September 26, 1995.
12 And then it was winter time. Ipperwash
13 Provincial Park, of course, was closed. And then there
14 was a question that you referred to of whether it could
15 be available for winter use and it was determined it
16 could not be available for winter use, right?
17 A: No, that's not correct?
18 Q: I'm sorry?
19 A: It was the winterization of the water
20 system, not winter use as I understand it.
21 Q: No, no. But then wasn't -- it was
22 the problem of winterization of the water system, but was
23 there not also -- was it not also the case that sometimes
24 in the winter, in previous years, Ipperwash Provincial
25 Park had been used by snow trekkers or I don't know what

244

1 else.
2 A: I wasn't --
3 Q: Snowmobiles?
4 A: I wasn't aware of that. You can --
5 Q: I see --
6 A: -- ask the others.
7 Q: Okay. And that's not crucial to my
8 line of questioning.
9 It came to be spring of 1996 and then the
10 real question began to arise, as you indicated earlier:
11 Will Ipperwash Provincial Park be functioning as a
12 provincial park next summer, right?
13 A: Hmm hmm.
14 Q: Right?
15 A: That was the potential question, yes.
16 Q: Yes. And was it the case that
17 campers were able to, in previous years, reserve places
18 for summer camping, months prior to the summer?
19 A: We tried to implement a system
20 through Ontario Parks where you could make those kinds of
21 reservations in advance.
22 Q: Yeah.
23 A: Yes.
24 Q: And that was in place in those years,
25 was it not?

245

1 A: In some parks, yes.
2 Q: And what about Ipperwash Provincial
3 Park?
4 A: I don't know, specifically.
5 Q: In any event, it's reasonable to
6 assume that there would have been people who would have
7 been wondering, can they camp at Ipperwash Provincial
8 Park in the summer of 1996, right?
9 A: I believe so, yes.
10 Q: And you knew there were such people
11 because you were getting queries, Will it be open in the
12 summer of 1996, right?
13 A: I believe so, yes.
14 Q: And you knew that there were still
15 Stoney Point people in the Park, right?
16 A: That's correct.
17 Q: Now, were there any negotiations,
18 that you were aware of, that had a view of trying to get
19 the Stoney Point people to leave the Park or somehow
20 accommodate the possibility of campers for the summer of
21 '96? I'm talking late 1995, early 1996.
22 A: I believe we had a pretty good
23 resolution to the winterization of the water system.
24 Q: Yes?
25 A: And between the dates that you're

246

1 talking about, Chief Bressette came to my office in
2 Queen's Park and we had a discussion. He had a number of
3 concerns and I said I would do what I could to help. So
4 it was sort of in that context, as well as saying, you
5 know, is there any possibility that the Park will open
6 this season.
7 It's always been my wish that the Park
8 would open to the people of Ontario, but there was some
9 deep underlying factors that would be complicated and
10 would need to be resolved, and so we hired Lloyd Girman
11 to see if we could find some common ground among all the
12 parties.
13 Q: And did that result in anything
14 positive?
15 A: Any time that you have dialogue I
16 believe there's some positive things that would come out
17 of it. However, the initiative didn't succeed in ending
18 the occupation or solving any of the underlying
19 fundamental problems that existed in the community and --
20 in relation to the Federal Government because we couldn't
21 get all the parties to the table. The Federal Government
22 said they wouldn't be a party to that.
23 Q: Now, could you please turn to your
24 Tab 63, Inquiry Document Number 1001184, Exhibit P-1016?
25 This is a document dated March 18, 1996

247

1 and it's called, Sessional Paper Number P-58, Petition
2 Relating to Ipperwash Provincial Park, Mr. M. Beaubien,
3 Lambton.
4 Now, I believe you told us, in your
5 evidence-in-chief, that it was your understanding that
6 this was a response to a petition that Mr. Beaubien had
7 delivered, a petition signed by many of his constituents;
8 is that correct?
9 A: Yeah, that would be my assumption,
10 yes.
11 Q: And then there's a portion entitled,
12 Answer/Response: Number 1. Reopen Ipperwash Provincial
13 Park, and it's states:
14 "It is the Ministry's hope that
15 Ipperwash Provincial Park will be open
16 for public use for the 1996 summer
17 season."
18 And it indicates:
19 "Discussions have been had with the
20 First Nations in an attempt to make
21 suitable arrangements for the upcoming
22 season."
23 But then the second paragraph says:
24 "MNR continues to view the occupation
25 of the Park as an act of illegal

248

1 trespass. The Ministry believes that
2 the Province holds clear title to the
3 Park's land base, and to this point in
4 time, no formal land claim has been
5 filed concerning the property in
6 dispute."
7 I'm going to turn to that point. But if
8 we could just finish with this document by looking at the
9 next page under Number 3, there's a section entitled,
10 Burial Sites:
11 "MNR is anxious to resolve the matter
12 of burial sites within Ipperwash
13 Provincial Park. To this end, the
14 Ministry is willing to enter into a co-
15 operative research project with the
16 First Nations to investigate the
17 alleged locations and origins and
18 sites."
19 And so on. So I believe it's your
20 evidence that you don't know if, in spite of that
21 willingness, such an investigation actually ever took
22 place; is that correct?
23 A: Correct. And I had also assumed that
24 it would have begun a lot earlier than that as well --
25 Q: I see.

249

1 A: -- by the First Nation themselves
2 with Federal funding. That assumption may be inaccurate
3 as well.
4 Q: Well, would this be an accurate
5 assumption? If there had been such an investigation,
6 you, the Minister of Natural Resources, would have been
7 appraised of the result?
8 A: I would have hoped to have been, yes.
9 Q: Yes. So the fact that you were not
10 so appraised would suggest that there was no such
11 investigation.
12 A: I may have been appraised of some of
13 the work that was being undertaken. I can't recall,
14 specifically.
15 Q: So, in any event, picking up from the
16 previous part, you were -- it was MNR's position, as this
17 document says, was it not, on March 18, 1996 that you
18 still viewed it as an illegal trespass?
19 A: Yes.
20 Q: Now, I read to you parts of the
21 statement that Government lawyers had read to the court
22 on September 11, 1995 in withdrawing the injunction
23 application.
24 And in -- including the indication that it
25 might be renewed at some future time. And I would like

250

1 to now suggest to you the reasons that it was not renewed
2 and see if that accords with your understanding.
3 On the -- I would suggest to you that you
4 were a party to or at least aware of discussions along
5 the following lines. That on the one hand MNR did have
6 the view that it was their land, that there had been
7 nothing demonstrated to displace their title to the land.
8 But on the other hand, to pursue any legal
9 action in court would mean that everything that happened,
10 including the killing of Dudley George, would be open to
11 judicial scrutiny and therefore the injunction was not to
12 be pursued.
13 Is that a fair summary of many discussions
14 that you're aware of, sir?
15 A: I've never heard that before. My
16 understanding was that the situation was stable on the
17 ground, that there wasn't any escalation. There was no
18 rumours of escalation, even of road blockades or anything
19 else.
20 And that was my understanding why it
21 wasn't pursued.
22 Q: No escalation, but what about the
23 Park?
24 A: Well it was stable. The building --
25 the Park land is not going anywhere; we've got time.

251

1 Q: You've got time. And you were in
2 Government until 2003, right?
3 A: Yes.
4 Q: And the Park was still not used in
5 the way it had been prior to 1995, for campers; isn't
6 that right?
7 A: That's correct.
8 Q: And, as far as you know, as of this
9 moment it is still not opened for camping, right?
10 A: That's correct. It's my
11 understanding, yes.
12 Q: But nonetheless, throughout all the
13 time that you were aware of, it was MNR's position that,
14 in fact, they had title to that property on behalf of the
15 people of Ontario, right?
16 A: That's correct.
17 Q: Now, why was it not your
18 responsibility to assert that title through the courts,
19 as had been begun in September of 1995?
20 A: Well, I answered that -- that we felt
21 the situation was stable, that there was no escalation in
22 the road blockades outside of the Park. And we were
23 willing to work with the parties involved and the local
24 community to see if there was some resolution possible on
25 some of the underlying issues that may have caused the

252

1 need, or perceived need, for an occupation.
2 Q: And was it not the case that on
3 September 6th, 1995 and September 7, 1995 there were no
4 blockades of roads, and people were stable in the Park?
5 A: There had been --
6 Q: But yet you sought an injunction.
7 A: There had been a progression of
8 events, as we were presented, starting in 1993, and then
9 again in '95 with an occupation of an occupied part of
10 the Federal lands. They still didn't get the Federal
11 Government's attention.
12 It spilled into a Provincial Park, in our
13 opinion, and there was a real concern, at the time, that
14 this would escalate to the surrounding road system and
15 potentially -- other Provincial Parks were also mentioned
16 as potential targets.
17 Q: So you're saying that was the reason
18 that an injunction was applied for --
19 A: They wanted to deal with it in a
20 timely fashion, is my understanding.
21 Q: That's why you wanted to deal with it
22 in a timely fashion. But did you not, as the Minister of
23 Natural Resources, assert that you had the -- that you,
24 the Ministry, had title to that Park and wanted it open
25 for camping in 1996?

253

1 A: Absolutely.
2 Q: And why did you not pursue an
3 injunction to that end?
4 A: We felt that if we could help resolve
5 on the --
6 COMMISSIONER SIDNEY LINDEN: I think he
7 answered your question; you asked it again. It may not
8 be an answer that --
9 MR. PETER ROSENTHAL: May I -- may I ask
10 a different but related question, with your permission,
11 Mr. Commissioner?
12
13 CONTINUED BY MR. PETER ROSENTHAL:
14 Q: Did you not become aware -- well, let
15 me ask you this question: Did you, personally, as the
16 Minister of Natural Resources, decide that the Ministry
17 should not assert its title over that property any time
18 after September 11, 1995, for all those years?
19 A: I don't ever recall discussing that.
20 I do recall meeting with Chief Bressette, talking about
21 how we could maybe work together with local parties to
22 see if the Federal Government would resolve some of the
23 underlying issues.
24 Q: When was that, in 1995/6?
25 A: '96, I believe. Yeah, '95/'96.

254

1 Q: How about 1997?
2 A: Possibly.
3 Q: 1998?
4 A: I don't believe I have had any
5 discussions with Ipperwash in '98.
6 Q: No, so by '98 you realized that those
7 discussions hadn't resolved it in the Park being returned
8 to the Ministry; isn't that right?
9 A: No, I wasn't the Minister of Natural
10 Resources at that time. I don't recall discussing that.
11 Q: Are you saying, under Oath, sir, that
12 you were not aware at any point of a reluctance to go to
13 Court because of the possibility that there would be
14 judicial scrutiny of what happened around the killing of
15 Dudley George?
16 A: Yes.
17
18 (BRIEF PAUSE)
19
20 Q: Now, at the dining room meeting,
21 you've told us that Premier Harris referred to the
22 possibility of an Inquiry. And here we are, there is an
23 Inquiry.
24 It's ten (10) years later. You were
25 aware, beginning shortly after the killing of Dudley

255

1 George, of demands from various members of the public
2 that there be a Public Inquiry into what happened in the
3 course of that killing; is that correct?
4 A: That's correct.
5 Q: And you were a member of Cabinet and
6 that issue, undoubtedly, was discussed at Cabinet; is
7 that not correct?
8 A: I don't recall a specific discussion
9 on it; on the Cabinet agenda. There could have been, I
10 just don't recall that.
11 Q: Well, a decision like that, would
12 Mike Harris, as Premier, just make that decision, no
13 Inquiry, or would it be discussed at least, with Cabinet?
14 A: Well, it's possible it was discussed
15 by lots of people.
16 COMMISSIONER SIDNEY LINDEN: Just before
17 you go any further.
18 Yes, Ms. McAleer...?
19 OBJ MS. JENNIFER MCALEER: Mr. Commissioner,
20 I rise because I'm concerned that we're heading down the
21 same road that Mr. Rosenthal attempted to head down with
22 Mr. Runciman.
23 And I'll rise and make the same objections
24 as Mr. Downard did at that point in time, which is that
25 any discussions that were held among the Cabinet

256

1 Ministers, including Mr. Hodgson, Mr. Harris and anyone
2 else, as to when or whether an Inquiry should be held is
3 with -- is not within the scope of your mandate and that
4 those types of questions should not be put to Mr. Hodgson
5 or to other witnesses.
6 COMMISSIONER SIDNEY LINDEN: I don't want
7 to discuss it --
8 MR. PETER ROSENTHAL: I do not believe
9 there was a ruling --
10 COMMISSIONER SIDNEY LINDEN: No.
11 MR. PETER ROSENTHAL: -- as harsh as she
12 said, and I -- I believe you did accept my submissions
13 that such questions can shed light on the events.
14 COMMISSIONER SIDNEY LINDEN: It depends
15 on the question and I don't want to have a discussion of
16 this in the context of my mandate.
17 MR. PETER ROSENTHAL: Yes.
18 COMMISSIONER SIDNEY LINDEN: Now you're
19 entitled to ask a question about -- as you did the other
20 witness, but I don't want to pursue this in any great
21 detail.
22 MR. PETER ROSENTHAL: That's what I
23 understood you to say previously and given the answer to
24 that question I think that's the end of my inquiry of
25 this witness.

257

1 COMMISSIONER SIDNEY LINDEN: That's what
2 I thought.
3 MR. PETER ROSENTHAL: Because he's -- he
4 said he doesn't recall if it was discussed at all in
5 Cabinet.
6 COMMISSIONER SIDNEY LINDEN: That's
7 right.
8
9 CONTINUED BY MR. PETER ROSENTHAL:
10 Q: And well just -- you don't recall any
11 other discussions of this question, is that what you're
12 telling us?
13 A: Well, I recall the discussions over
14 the years but that's just private conversations.
15 Q: I'm sorry, will you speak a little
16 louder please.
17 A: The private conversations is not --
18 we live in a vacuum it's in the papers.
19 Q: No but, as far as -- can you shed any
20 light on why the Government did not call an inquiry --
21 the Harris Government did not call an inquiry ever in its
22 course of its existence?
23 COMMISSIONER SIDNEY LINDEN: I --
24 THE WITNESS: No, I don't believe so.
25 MR. PETER LAUWERS: With respect, what

258

1 has this got to do with this Inquiry.
2 COMMISSIONER SIDNEY LINDEN: It doesn't
3 really. I mean, unless there's some evidentiary
4 foundation for it, it doesn't really -- I mean, an
5 inquiry into why we didn't have an inquiry is not an
6 inquiry that I'd want to embark on.
7 MR. PETER ROSENTHAL: Well, Mr.
8 Commissioner, that's dangerously close to the other
9 ruling. But I -- I'm going to move on if I may with this
10 witness.
11 COMMISSIONER SIDNEY LINDEN: Yes, that's
12 fine.
13 MR. PETER ROSENTHAL: But I -- I hope
14 there's no ruling about that because I do intend to ask
15 some other witnesses this question.
16 COMMISSIONER SIDNEY LINDEN: I'm prepared
17 to deal with this on a question-by-question basis.
18 MR. PETER ROSENTHAL: Thank you.
19
20 CONTINUED BY MR. PETER ROSENTHAL:
21 Q: Now as I told Mr. Commissioner I am
22 going to move on. There's this question of the word
23 holocaust being mentioned at the dining room meeting.
24 And I believe in your examination-in-chief it was put to
25 you that we'd had evidence from both Ron Fox and Scott

259

1 Patrick that the Premier did utter that word in that
2 context.
3 And you told us you didn't recall that, is
4 that fair?
5 A: I did not hear that remark at all,
6 no.
7 Q: Yes. But then I -- I wish to put to
8 you some other evidence that we've had and see if that
9 might help to jar a memory and I do appreciate it's ten
10 (10) years later. We all do appreciate that and you may
11 not recall.
12 So this is some testimony of David Moran
13 from November 1st proceedings at this tribunal at page
14 29. He told us that he didn't recall the -- the
15 Premier's reference to the holocaust directly.
16 But then he went onto say the following:
17 "The other thing that I -- I think is
18 important to note is and I've read some
19 of the media coverage about the
20 Premier's comments and in focus of
21 what the Premier was trying to say and
22 yes, he was a little frustrated, was
23 that it's important to act before
24 things escalate and go and before a
25 tragedy occurs."

260

1 And may I interrupt myself to indicate
2 that that much resonates with your evidence, is that
3 correct?
4 A: Somewhat, we talked about that at
5 length already, yes.
6 Q: It's similar, slightly different
7 wording, but similar to what you've told us. Is that
8 right?
9 A: I was talking about in August to --
10 for preventing the situation from occurring.
11 Q: Yes. And then -- so then continuing
12 with what Mr. Moran testified:
13 "And the -- there's some people's
14 impression of the Premier's comments
15 surrounding in particular holocaust
16 were taken out of context from a lack
17 of understanding.
18 I think that the former Attorney
19 General would say that his greatest
20 accomplishment his five (5) years of
21 opposition was bringing in, getting the
22 Legislative Assembly of Ontario to
23 adopt a holocaust memorial day.
24 And that undertaking you had a great
25 deal of support for Mr. Harris as well

261

1 as the Government of the day --"
2 and so on.
3 "And then -- and that Mr. Harnick had
4 been very hard in terms of improving
5 getting Mr. Harris really involved in
6 the Jewish community. Mr. Harris had
7 become a board of -- Member of the
8 Board of directors of the Yad Vashem,
9 the Holocaust Memorial Society.
10 And so what I took from the Premier's
11 comments was that it's really important
12 for officials to act before a tragedy
13 occurs and it -- I think that maybe
14 someone that was less familiar with the
15 situation of the history could have
16 taken those out of context. I think
17 that's what happened but certainly I
18 didn't take anything that he said in a
19 negative context with regard to that."
20 Now, sir, that was Mr. Moran's way of
21 dealing with the question of whether or not Mr. Harris
22 uttered the word 'holocaust'.
23 Does that assist you in perhaps recalling
24 that in the context of -- and you do recall of him
25 saying, we have to stop things early, he might well have

262

1 mentioned the word 'holocaust'?
2 A: No, and I believe I would have
3 remembered that.
4 Q: Okay. Now, in respect to the mugs
5 and t- shirts and related incidents, you were examined
6 in-chief by Ms. Vella in part on that and beginning on
7 page 25, on January 16.
8
9 (BRIEF PAUSE)
10
11 Q: Beginning at about line 16,
12 "Q: All right."
13 Oh, perhaps I'll wait for it to be
14 displayed, so you can read along if you wish to.
15 A: I'm sorry, I can't hear you.
16 Q: I'm sorry. I said perhaps I'll wait
17 for it to be displayed so that you can read along as
18 well, if you wish.
19 A: Okay.
20 Q: There it is.
21 COMMISSIONER SIDNEY LINDEN: Can you see
22 the screen all right from your angle, Mr. Hodgson?
23 THE WITNESS: It's okay. I'll -- I'll
24 hear it and see a bit of it.
25 COMMISSIONER SIDNEY LINDEN: But you can

263

1 see it well enough to read it?
2 THE WITNESS: Yes.
3 COMMISSIONER SIDNEY LINDEN: Because if
4 you can't, we can try to figure out some way to make sure
5 that you can.
6 MR. PETER ROSENTHAL: But he can also
7 listen and I'm sure that his Counsel will catch me if I
8 misstate it.
9 COMMISSIONER SIDNEY LINDEN: But is --
10 MR. PETER ROSENTHAL: Whatever you feel
11 comfortable with, sir.
12 THE WITNESS: Yeah, go ahead, read it.
13
14 CONTINUED BY MR. PETER ROSENTHAL:
15 Q: Okay. So, beginning about line 16 on
16 page 25:
17 "All right, now Mr. Kobayashi and Mr.
18 Sturdy testified that the objects
19 complained about by Mr. Cloud were
20 certain mug and t-shirts, a can with a
21 feather in the hole, and a picture of a
22 bull's eye and arrow on the police
23 cruiser and two (2) cartoons that were
24 posted, the latter being posted within
25 the Pinery Park building."

264

1 And then Ms. Vella requested that Exhibit
2 P-458 be displayed and pointed out the insignia and so
3 on. And then on the next page, line 7, she asked:
4 "Did you become familiar with these
5 images through -- through the media at
6 all?"
7 And you answered, "Not at all."
8 Now, sir, you then went on to be asked
9 about the t-shirts and so on, but the question had been,
10 did you become familiar with these images through the
11 media at all. You answered, "No, I did not."
12 Did you become familiar with those images
13 in any way, prior to your reviewing material in
14 preparation for this Inquiry?
15 A: The first time I saw the -- was
16 yesterday, under --
17 Q: Examination-in-chief.
18 A: -- maybe -- might have been
19 yesterday, two (2) days ago. The days start to run
20 together.
21 Q: I see.
22 A: But that's the first time I've seen
23 those photographs, yes.
24 Q: So -- so even in your preparation for
25 the Inquiry, you didn't become aware of those, you didn't

265

1 see them --
2 A: I didn't see them until --
3 Q: It was only --
4 A: -- they were on the screen here.
5 Q: -- at the actual Inquiry yesterday ?
6 A: That's correct.
7 Q: And then you were asked -- they show
8 the t-shirts, Ms. Vella had displayed the t-shirts on the
9 screen and so on and she asked:
10 "Did you become familiar with those in
11 any way?"
12 You answered:
13 "No, I --
14 Q: All right.
15 A: This is the first time I've seen
16 that."
17 So that was the first time you saw the t-
18 shirts?
19 A: Yes.
20 Q: And then --
21 COMMISSIONER SIDNEY LINDEN: Now, I'm
22 sorry, Mr. Rosenthal. Are you simply repeating the
23 evidence or is there a question --
24 MR. PETER ROSENTHAL: Well, I want to --
25 yeah, I'm putting it as context and then I'm going to

266

1 ask --
2 COMMISSIONER SIDNEY LINDEN: And then
3 you're going to ask a question?
4 MR. PETER ROSENTHAL: Ask him if he
5 thinks it's --
6 COMMISSIONER SIDNEY LINDEN: Well, so far
7 you're simply read --
8 MR. PETER ROSENTHAL: I have to put this
9 context, I believe, in order to put the question. I'm
10 not going to read extensively from the transcript.
11 COMMISSIONER SIDNEY LINDEN: All right.
12 MR. PETER ROSENTHAL: But -- I'm sorry,
13 Mr. Commissioner. I understand --
14 COMMISSIONER SIDNEY LINDEN: No --
15 MR. PETER ROSENTHAL: -- the time
16 constraints.
17 COMMISSIONER SIDNEY LINDEN: Well, it's
18 not helpful to just have you read the evidence and read
19 the answers. If there's some -- if it's going somewhere
20 then --
21 MR. PETER ROSENTHAL: Well --
22 COMMISSIONER SIDNEY LINDEN: -- by all
23 means, but simply reading the questions that have been
24 asked and reading the answers that have been given, and
25 confirming that those were the questions --

267

1 MR. PETER ROSENTHAL: Well --
2 COMMISSIONER SIDNEY LINDEN: -- and
3 confirming that those were the answers --
4 MR. PETER ROSENTHAL: I --
5 COMMISSIONER SIDNEY LINDEN: -- is not
6 helpful.
7 MR. PETER ROSENTHAL: I agree, Mr.
8 Commissioner --
9 COMMISSIONER SIDNEY LINDEN: That's fine.
10 MR. PETER ROSENTHAL: -- but in at least
11 one (1) instance and perhaps two (2) of the ones I did
12 clarify the answer and extend the answer --
13 COMMISSIONER SIDNEY LINDEN: Well --
14 MR. PETER ROSENTHAL: -- in a way that
15 was important, in my respectful submission.
16 COMMISSIONER SIDNEY LINDEN: Let's carry
17 on.
18 MR. PETER ROSENTHAL: And also, I'm
19 putting this as background to what I'm going -- to a
20 series of questions I'm going to be asking him, if I may.
21 COMMISSIONER SIDNEY LINDEN: Fine.
22
23 CONTINUED BY MR. PETER ROSENTHAL:
24 Q: But -- oh well, I'll just -- there
25 were also cartoons and so on. You became aware very

268

1 recently that there were some materials discovered in the
2 Pinery Provincial Park in the possession, apparently, of
3 MNR employees that at least some people would
4 characterise as racist materials.
5 Is that fair?
6 A: Was in the possession of the MNR
7 employees? I wasn't clear on that.
8 Q: That was our understanding, that it
9 was in --
10 A: I understood they found them.
11 Q: Well, they found them in -- yes, some
12 of -- there may have been -- some of them may have been
13 used by police or in the possession of police officers,
14 and some in possession of MNR employees, okay.
15 A: Is that correct?
16 COMMISSIONER SIDNEY LINDEN: Weren't
17 some --
18 MS. SUSAN VELLA: Well, I think --
19 COMMISSIONER SIDNEY LINDEN: -- weren't
20 some on a bulletin board?
21 MS. SUSAN VELLA: Yeah. I -- I think --
22 I think it's really more accurate to indicate that these
23 objects were seen by an MNR employee at the Pinery Park?
24 MR. PETER ROSENTHAL: But the -- the
25 context is it not correct, Ms. Vella suggests that some

269

1 of these objects would have undoubtedly been in
2 possession of MNR employees and some in the possession of
3 police officers?
4 MS. SUSAN VELLA: The evidence as I
5 understand it was that the cartoons were posted --
6 COMMISSIONER SIDNEY LINDEN: On a
7 bulletin board.
8 MS. SUSAN VELLA: And that -- or certain
9 other --
10 COMMISSIONER SIDNEY LINDEN: At the
11 Pinery.
12 MS. SUSAN VELLA: -- objects were found
13 within the Pinery Park, not that they were within the
14 possession, personal possession of an employee.
15 MR. PETER ROSENTHAL: Well, there's a
16 question about the can with the feather, where ever that
17 was and so on but the posting of the cartoon was by an
18 MNR employee for example.
19 COMMISSIONER SIDNEY LINDEN: Well, it was
20 found on a bulletin board.
21 MR. PETER ROSENTHAL: As I understand.
22 MS. SUSAN VELLA: On a bulletin board.
23 MR. PETER ROSENTHAL: Yes, but having
24 been posted by an MNR employee.
25 MS. SUSAN VELLA: That's in the evidence

270

1 and that was reviewed in examination.
2 MR. PETER ROSENTHAL: Yes. I -- I was
3 going to be more specific in going through the details,
4 Mr. Commissioner, but I was acceding to your suggestion
5 and trying to --
6 COMMISSIONER SIDNEY LINDEN: Yes.
7 MR. PETER ROSENTHAL: -- do it more
8 quickly.
9 COMMISSIONER SIDNEY LINDEN: Okay.
10
11 CONTINUED BY MR. PETER ROSENTHAL:
12 Q: And just wanted to summarize as
13 indicating that there were at least some MNR employees
14 involved with this material which some people would
15 consider to be racist, okay? I'm just summarizing it
16 that way.
17 Is that a fair summary in your
18 understanding, sir, as of today?
19 A: Yeah, I would assume so. It came out
20 of the question I got yesterday, so...
21 Q: Okay. So...
22 A: I'm not familiar with the -- the
23 issue or the details around it so.
24 Q: You've explained that to us, sir.
25 So now I'm getting to the question, Mr.

271

1 Commissioner. I'm sorry if it was tedious getting to
2 that.
3 Would you agree that if there are
4 allegations of racism among MNR employees that kind of
5 matter should be brought to the attention of the Minister
6 of Natural Resources?
7 A: I would assume that all the proper
8 procedures were followed. The personnel issues involved
9 the bureaucracy of the civil service side of government
10 and there was collective agreements with the unions that
11 determined some of the boundaries that constrict or allow
12 for in terms of management, employee relationships and I
13 would assume those were followed having confidence in the
14 Minister --
15 Q: You assumed the proper procedures
16 were followed but would you agree with me, sir, that
17 something of that nature should have been brought to your
18 attention as the Minister?
19 A: Well, it wasn't. I was surprised
20 that it wasn't and I've expressed that.
21 MS. SUSAN VELLA: With -- with respect, I
22 asked almost those identical questions.
23 I asked: Were you -- are you surprised
24 that as Minister you were not apprised of these types of
25 matters? He went into the exact same explanation. With

272

1 respect I -- I haven't heard anything that hasn't already
2 been examined almost verbatim.
3 MR. PETER ROSENTHAL: Well, the
4 difference is I asked if he should have been.
5 MS. SUSAN VELLA: It's the same question.
6 MR. PETER ROSENTHAL: He did say that he
7 was surprised he didn't know but that's different from it
8 being a requirement that he should know.
9 COMMISSIONER SIDNEY LINDEN: Well, I
10 think it's going to take us longer to argue what you did
11 or didn't do or should or shouldn't have done than to do
12 it.
13 MR. PETER ROSENTHAL: I do agree and I
14 don't want to run into that argument.
15 COMMISSIONER SIDNEY LINDEN: I don't want
16 to repeat what has already been done, that's all.
17
18 (BRIEF PAUSE)
19
20 MR. PETER ROSENTHAL: I think I'm going
21 to end there then, Mr. Commissioner, and thank you, Mr.
22 Hodgson. Thank you, Mr. Commissioner.
23 COMMISSIONER SIDNEY LINDEN: Thank you
24 very much, Mr. Rosenthal. I think Mr. Scullion is up
25 next.

273

1
2 (BRIEF PAUSE)
3
4 COMMISSIONER SIDNEY LINDEN: If you need
5 to stay, Mr. Hodgson, beyond 4:30 could you?
6 THE WITNESS: I'm fine, yes.
7 COMMISSIONER SIDNEY LINDEN: I mean, it's
8 up to you if you feel --
9 THE WITNESS: No, I'm fine.
10 COMMISSIONER SIDNEY LINDEN: We'll see
11 how it goes.
12 THE WITNESS: Okay.
13 COMMISSIONER SIDNEY LINDEN: I want to
14 ask Mr. Scullion how long he might be and then we can
15 make some assessment of how to handle the rest of the
16 afternoon.
17 THE WITNESS: Yes.
18
19 (BRIEF PAUSE)
20
21 COMMISSIONER SIDNEY LINDEN: I believe,
22 Mr. Scullion, when you were asked initially you estimated
23 about two (2) hours. Are you still in that range?
24 MR. KEVIN SCULLION: I am, Mr.
25 Commissioner. I don't expect to be finishing certainly

274

1 not before five o'clock.
2 COMMISSIONER SIDNEY LINDEN: Well, let's
3 carry on and then we'll find the convenient point and you
4 can determine it and then we'll break.
5 MR. KEVIN SCULLION: Okay.
6
7 CROSS-EXAMINATION BY MR. KEVIN SCULLION:
8 Q: Good afternoon, Mr. Commissioner.
9 Good afternoon, Mr. Hodgson. My name's Kevin Scullion
10 and I'm one (1) of counsel for the Residents of
11 Aazhoodena, you may know as well as the Stoney Pointers.
12 A: Okay.
13 Q: Just at the outset, I trust you're
14 aware that there's been a number of questions and -- and
15 lines of questions in regards to this issue being a law
16 and order issue, an Aboriginal issue or an MNR issue.
17 You're aware of discussion at the Inquiry
18 in regards to that just in general?
19 A: As of today it's been the flavour of
20 the questions, yes.
21 Q: All right. Back on September 4th,
22 5th and 6th, was it your view that this matter was an
23 Aboriginal issue?
24 A: It was unclear back in those days.
25 We had -- if there had been the recognized First Nation

275

1 that did the occupation, it would have been clear cut.
2 My recollection is that there was
3 uncertainty about how to deal with this issue because it
4 was an unrecognized First Nation and who do you deal
5 with.
6 Q: I appreciate that. And I'm -- I'm
7 looking for your view back on September 4th, 5th and 6th.
8 It sounds to me as if -- the Chief and
9 Council if they had started the occupation that was going
10 on, in your view that would have made it an Aboriginal
11 issue?
12 A: Yes.
13 Q: And without that support, there was
14 some question in your mind whether or not it went to the
15 extent of being an Aboriginal issue.
16 A: I recall a lot of questions around
17 that, yes.
18 Q: Okay. And in the course of your
19 examination-in-chief and the cross-examinations that have
20 occurred today, I heard you refer a number of times to
21 the benefits to preventing such an occupation as opposed
22 to attempting to remove occupiers after the fact.
23 A: Right.
24 Q: Do I take it from that statement that
25 in your view, it was the failure to prevent this

276

1 occupation from occurring was the main problem here?
2 A: That's my view, yes.
3 Q: Okay. And is it fair to say that
4 that prevention of the occupation is something that would
5 have been up to the Government of the day to address?
6 A: I believe that some of the underlying
7 causes for concern that led to the occupation were around
8 the very question we've just talked about.
9 ONAS was the lead on this issue -- as
10 First Nation issue in terms of issues. But they were
11 very complicated. You had the recognized First Nation,
12 you had the unrecognized.
13 And if you're going to prevent this
14 situation, I felt that -- this is me speaking, that the
15 lead Ministry should have been on the ground, meeting
16 with all the affected parties to find out at the very
17 least more information than we had on September 4th and
18 5th.
19 That's just my opinion.
20 Q: All right. And when you say they
21 should have been on the ground, that's not only as of the
22 start of the occupation but that's at least a full month
23 beforehand.
24 A: Let me be more blunt. If it was
25 urgent enough to have a high level meeting on August 2nd

277

1 involving various Ministries and various people, I
2 thought the least somebody from the lead Ministry -- he
3 could have got in a car and driven down. And maybe he
4 did. I just never got an answer to that.
5 Q: All right. It could have been a
6 pretty good indicator that this was an issue that was
7 going come to a head some time soon and somebody should
8 take a look at it at least.
9 A: That was my opinion at the time of
10 the 4th, 5th and 6th and it still is today that if in
11 early August, I was assuming all of that time that the
12 lead Ministry was trying to prevent this situation from
13 escalating or occurring.
14 On the September 4th and 5th I didn't
15 receive any information and I think I brought that up
16 with Ron Fox at the Interministerial Committee in my
17 inarticulate way to try to express that, what was done to
18 prevent this?
19 Q: All right. We'll get into that a
20 little bit later but I just -- I trust from your answer
21 that you assumed that ONAS was taking a lead and doing
22 something on the ground and you weren't advised one (1)
23 way or the other whether that was happening?
24 A: No, I wasn't.
25 Q: At least --

278

1 A: Other than the fact that it wasn't
2 our issue all of August.
3 Q: All right. Again, you've referred to
4 our issue. You saw it as an ONAS --
5 A: MNR.
6 Q: -- issue.
7 A: I was told it was an ONAS, OPP issue.
8 Q: All right. Is it possible that it
9 would have been both ONAS and an MNR and an OPP issue?
10 Or do you see them as separate --
11 A: It could very well have been but that
12 wasn't what I was told all of August from my Deputy
13 Minister and from senior staff.
14 Q: All right. That's coming from Mr.
15 Vrancart and your senior --
16 A: Yes.
17 Q: -- staff which included Mr. Bangs --
18 A: Peter Allen.
19 Q: -- and Peter Allen or Peter Allen as
20 opposed to Mr. Bangs.
21 A: That would be both.
22 Q: All right.
23 A: But I don't consider -- Jeff Bangs is
24 on the political side, works for me. His expertise is on
25 my side of this job. The expertise I relied on was on

279

1 the civil service side.
2 Q: Which if I understand you correctly--
3 A: And Jeff would relay that information
4 to me occasionally --
5 Q: Right.
6 A: -- or I get it directly.
7 Q: All right. I don't want to ask
8 questions over top of your answers.
9 A: Okay, I'll slow down.
10 Q: That's all right, it's late in the
11 day and we speed a little bit at this point.
12 But if I understand your answer correctly,
13 you were relying on advice from Mr. Vrancart and Mr.
14 Allen, but Mr. Bangs was still providing information as
15 and when he was able to?
16 A: That's right.
17 Q: All right. If I can take you to --
18 back to the start of August and the Cape Croker matter,
19 it's of particular interest to my clients and you've
20 testified in-chief in regards to various aspects of it,
21 but I want to flush it out a little bit.
22 You recall that issue right at the start
23 of August involving the Chippewas and Nawash ?
24 A: Yes, I do and I've just -- throw in a
25 caution. It was ten (10) years ago and some of the

280

1 specifics and some of the details I may be corrected on,
2 but I do recall the meeting I was at and some of the
3 issues surrounding it.
4 Q: All right. Well, I'll put the
5 questions to you and if you recall them --
6 A: Okay.
7 Q: -- you can let us know your answer,
8 and if you don't recall, you let me know that as well.
9 A: Okay.
10 Q: Now, the incident itself involved the
11 rights of the natives to fish commercially, correct?
12 A: I think that had been resolved by a
13 Court Decision. The issue was a -- one around
14 conservation of -- of the fish and the different species
15 of fish.
16 Q: All right, so you recall more than we
17 may have expected. The Court case you are referring to,
18 I trust, is R. v. Jones, where a Justice Fairgrieve
19 ruled on the --
20 A: Yeah, I recollect that, yes.
21 Q: Okay. And we'll get to that in a
22 second.
23 A: Okay.
24 Q: But the issue in August was simply
25 that the local band was starting to assert its rights and

281

1 to follow that Court Decision in terms of commercial
2 fishing and it was running into conflict with the
3 established non-native commercial fishery?
4 A: I don't know if I would have worded
5 it that way. My understanding was that there had been
6 sort of a protocol worked out by the former government,
7 with both the First Nation and the local community, that
8 commercial fishing would take place -- even though they
9 had a legal right to commercially fish everywhere, the
10 fish -- the commercial right was for whitefish, I
11 believe, I might be corrected.
12 The local hatchery on the Outdoors Club
13 grew these salmon. There was no -- the Court wasn't
14 clear that they had a right to fish salmon, but the fish
15 couldn't tell which net -- which species of fish go in
16 the net and which ones shouldn't.
17 So, there was sort of a -- an
18 understanding worked out that -- that commercial fishing
19 would take place outside of the Owen Sound harbour, and
20 inside of the Owen Sound harbour would be for angling,
21 for everyone, but in particular the salmon fishery and
22 the derby.
23 In the early part of August, there was
24 concerns of nets in the Owen Sound bay, even though they
25 had a legal right to be there.

282

1 And that's a long winded answer to -- I
2 wanted to answer question, though. I don't think --
3 COMMISSIONER SIDNEY LINDEN: Mr.
4 Scullion, I'm interested in the incident of Chippewas of
5 Nawash, it's illustrative as background. As you may
6 know, as part of Part II of my mandate, I visited the
7 Chippewas of Nawash and I have some familiarity with the
8 issue. I think it's useful for background for Part II,
9 but I'm not sure how relevant it is to pursue it in any
10 great detail in this context.
11 I'm not too sure. As I said, it's
12 interesting and it's helpful, but it depends on how far
13 you go and how much you want to do with it.
14 MR. KEVIN SCULLION: I would disagree to
15 the extent that I would place it in the category of being
16 very important background information leading into how
17 the government, including the MNR, dealt with the
18 Ipperwash incident.
19 I've asked --
20 COMMISSIONER SIDNEY LINDEN: All right.
21 MR. KEVIN SCULLION: -- significant
22 numbers of questions, lines of questioning, of all MNR
23 staff up until now as to what happened and there was a
24 lot of uncertainty --
25 COMMISSIONER SIDNEY LINDEN: What

283

1 happened where? With -- in the Chippewas of Nawash
2 incident?
3 MR. KEVIN SCULLION: The Chippewas of
4 Nawash and what was done --
5 COMMISSIONER SIDNEY LINDEN: But --
6 MR. KEVIN SCULLION: -- in some detail.
7 COMMISSIONER SIDNEY LINDEN: But we're
8 not going to review that. In other words, I don't want
9 to get into the details too far, because we're not going
10 to call any witnesses regarding the Chippewas of Nawash
11 incident.
12 I mean, if we start getting into that,
13 it's an extremely complicated situation. As I said, it's
14 helpful in terms of background, if you want to do a paper
15 or have a paper in Part II, I'd welcome it, but I don't
16 want to get into a lot of evidence in this part regarding
17 the incidents that occurred at Chippewas of Nawash.
18 Now, some of it is relevant and Ms. Vella
19 did go into it, so I'm not sure if I should be saying
20 this now or wait until -- or see how far you go.
21 And once again, I see Mr. Roy on his feet.
22 COMMISSIONER SIDNEY LINDEN: You want to
23 go into this, too?
24 MR. JULIAN ROY: Well, it's just an
25 observation. I may want to touch on this. I don't want

284

1 to spend a lot of time on it --
2 COMMISSIONER SIDNEY LINDEN: That's my
3 point.
4 MR. JULIAN ROY: -- either, but I may
5 want to touch on it and --
6 COMMISSIONER SIDNEY LINDEN: Well, you
7 agree --
8 MR. JULIAN ROY: -- the reason is --
9 COMMISSIONER SIDNEY LINDEN: -- with me,
10 then. I don't mind it being touched upon. I just don't
11 want to have to determine the incident which occurred on
12 the same weekend in Owen Sound and get into it in any
13 great detail because again --
14 MR. JULIAN ROY: And I wouldn't want --
15 COMMISSIONER SIDNEY LINDEN: -- there are
16 conflicting versions --
17 MR. JULIAN ROY: Yes.
18 COMMISSIONER SIDNEY LINDEN: -- of what
19 happened and I'm aware of that.
20 MR. JULIAN ROY: And I wouldn't want -- I
21 wouldn't be asking you to do that, it's just that counsel
22 for Mr. Hodgson elicited evidence as to this Witness'
23 involvement --
24 COMMISSIONER SIDNEY LINDEN: Yes.
25 MR. JULIAN ROY: -- specific involvement

285

1 in those incidents in the evidence of Mr. Vrancart and
2 Mr. Bangs --
3 COMMISSIONER SIDNEY LINDEN: Yes.
4 MR. JULIAN ROY: -- and we may want to
5 address the issues that are raised by that --
6 COMMISSIONER SIDNEY LINDEN: Some --
7 MR. JULIAN ROY: -- to that limited
8 extent.
9 COMMISSIONER SIDNEY LINDEN: Some limited
10 extent of Chippewas of Nawash is helpful for this
11 Inquiry, it's just a question of degree. So let's carry
12 on, Mr. Scullion and see --
13 MR. KEVIN SCULLION: Okay.
14 COMMISSIONER SIDNEY LINDEN: -- what
15 you're going to do and how far you're going to go.
16 MR. KEVIN SCULLION: All right. If I go
17 too far I'll appreciate when the objections come.
18 COMMISSIONER SIDNEY LINDEN: That's fine.
19
20 CONTINUED BY MR. KEVIN SCULLION:
21 Q: What I wanted to establish was that
22 your visit to see the protesters and the First Nation was
23 precipitated by a number of acts of violence and protest
24 relating to the issue that you've just mentioned.
25 A: That might be too strong a word. I

286

1 think that they had a history of violence in preceding
2 years and it was a potential area that could really
3 escalate so, in general, yes.
4 Q: Right. And it was escalating
5 following the decision in '93 that allowed native
6 fishermen that right that you've referred to?
7 A: Right in '93, '94, and '95, yes, sir.
8 Q: Right. And some concern as to what
9 types fish were included, what were the extent of the
10 agreements and other informal arrangements that had been
11 made by the previous government?
12 A: Right. And in some cases a lack of
13 understanding what the court decision was.
14 Q: And, in particular, there was an
15 incident at Nawash that precipitated you going there,
16 which were the number of protesters and involving and
17 elderly lady at the market, correct?
18 A: I'm sorry, can -- can you speak
19 louder? I --
20 Q: It was an incident that involved an
21 elderly native woman at the market and a number of
22 protesters confronting her?
23 A: I believe she had her nine (9) year
24 old granddaughter with her, yes.
25 Q: Right. And that was a concern to you

287

1 to go out and see what exactly was going on?
2 A: Yes.
3 Q: Okay. And in going out you met with
4 the protestors or you met with the local anglers and
5 discussed their concerns, correct?
6 A: I believe I did, yes.
7 Q: All right. And that was about 6:00
8 p.m. on an evening when Chief and Council were also
9 meeting?
10 A: Yes, I believe so.
11 Q: Okay.
12 A: I went and met with the Chief and
13 Council as well.
14 Q: You went from that meeting over and
15 met with Chief and Council, correct?
16 A: Yes.
17 Q: All right.
18 A: That's my recollection.
19 Q: And one (1) of the issues that came
20 up at the Chief and Council meeting was the concept of
21 licensing, and that was a proposal that you'd made to
22 them as to a way to solve the current matter?
23 A: Proposal might be too strong a word.
24 We were -- we discussed some ideas, we talked about ways
25 that we might be able to find common ground that

288

1 recognized their constitutional right and the rights that
2 the courts had specified and also allow the -- the salmon
3 fishery to take place, if that was possible.
4 Q: Right.
5 A: And one of the options was a -- a
6 buy-out of commercial fishing licenses, either to
7 compensate the First Nation, if they chose not to be in
8 the fishing -- the commercial fishing business, or to --
9 another option would be to buy out the non-commercial
10 fishermen.
11 And while you refresh my memory I would
12 like to clarify a point I've learned since my testimony
13 just yesterday, that I may have been mistaken on the $15
14 million the Management Board approved in '99. I've seen
15 information that it might have been $14 million and gone
16 to the non Aboriginal fishery to compensate them to allow
17 just for one (1) commercial fishery.
18 The species could only sustain one (1)
19 commercial fishery, not two (2) and I remember discussing
20 that with the Council on which way they would prefer to
21 go and left them to think about it.
22 Q: Right. And I appreciate you may have
23 seen those documents in the last day or two and -- and
24 we, in fact, circulated one that might have helped you in
25 that regard.

289

1 A: That's the one I'm probably referring
2 to, yes.
3 Q: Fair enough. And it clarifies your
4 testimony of yesterday in which you thought that the $15
5 million had actually gone to the Native fishermen or the
6 Chief and Council or the Band.
7 A: Yeah.
8 Q: When, in fact, it had gone to buy out
9 the quotas for the non Native fisherman.
10 A: Yeah, it could have been an option,
11 but I think the First Nations concern was, you take the
12 cash for the value that you place on the fishery and then
13 what do you have in perpetuity.
14 Their right was in perpetuity and so then
15 I think, you know, in subsequent years they switched over
16 to the compensation would go to buy out the fishery to
17 allow the First Nation to have the only commercial
18 fishery in the area.
19 Q: All right. And I won't suggest that
20 this is the only time, but I would suggest it was one (1)
21 of the first times, in your mandate, when you had gone
22 and met with the First Nation directly and been involved
23 in how Treaty rights and conservation rights and
24 licensing and other measures were used to deal with
25 issues like this?

290

1 A: It may be, but I was meeting with a
2 lot of First Nations that summer and throughout my
3 mandate from the Minister of Northern Development of
4 Mines, with Don Obonsawin. We were trying to set
5 parameters around the Heritage Fund.
6 And I remember having a lot of discussions
7 that summer and throughout my term as MNDM --
8 Q: All right.
9 A: -- Minster with Don Obonsawin as my
10 Deputy.
11 Q: All right. I -- I appreciate that
12 and the point that I'm making is that you had first hand
13 knowledge and you had visits, personal visits to the
14 communities to see these types of conflicts.
15 A: Exactly, it was a -- we were the lead
16 on this file, it was a conservation issue, clearly an MNR
17 issue.
18 Q: Right. And I'm not going to say that
19 it went smoothly, I'm not going to say that --
20 A: No, it didn't.
21 Q: -- MNR was at fault or otherwise.
22 I'm going to say that it was a difficult issue,
23 complicated issue that was resolved, ultimately, with the
24 purchase of the non Native fishermen's licenses.
25 A: That's my understanding, yes.

291

1 Q: All right. And in the process, when
2 you met with Chief and Council, they advised you not only
3 of the 1993 decision that gave them that absolute right,
4 but also, as it would suggest, that they raised the issue
5 of the Honour of the Crown and the Honour of the Crown
6 within the -- their dealings with Native people.
7 Was that an issue that came up at that
8 meeting?
9 A: I can't recall the specifics, but I'm
10 not disputing that it did.
11 Q: All right. But that was an issue
12 that came up in the course of your initial three (3) or
13 four (4) months as Minister of Natural Resources was it
14 not? On how to deal with First Nations on these types of
15 issues?
16 A: Oh, I would have been briefed on
17 that, yes.
18 Q: Right. In fact, that was one of the
19 guiding principles coming out of Sparrow and other
20 cases --
21 A: Hmm hmm, yeah.
22 Q: -- that the Honour of the Crown is
23 important in how it deals with the First Nations on
24 issues like this?
25 A: Correct.

292

1 Q: Okay.
2
3 (BRIEF PAUSE)
4
5 Q: Now, with respect to going to meet
6 with the protesters and meeting with Chief and Council,
7 that was your decision made within your Ministry,
8 correct?
9 A: I think I had testified it was
10 actually my wife's decision but, yes.
11 Q: Well, we'll include her in that group
12 of --
13 A: No, she'd prefer not to be in the
14 public spotlight.
15 Q: She might not want to be. But that
16 was -- that was your decision with a little prompting
17 within your Ministry to go out and personally visit the
18 area?
19 A: Yes. Yes.
20 Q: To see what the concerns were and to
21 see if a resolution could be reached.
22 A: That's correct.
23 Q: All right. And as I've suggested, it
24 wasn't an easy solution, it was a complicated matter and
25 it took four (4) or five (5) years to resolve.

293

1 A: That's right. And it wasn't easy --
2 the means weren't easy either.
3 Q: But you took the lead and MNR took
4 the lead in dealing with that issue?
5 A: That's correct.
6 Q: Did you see that as a MNR issue or an
7 Aboriginal issue or perhaps a combination of the two (2)?
8 A: I saw that as an MNR issue. And no
9 one told me I couldn't.
10 Q: I trust that's probably true, but did
11 you also see it as an Aboriginal issue?
12 A: Yeah, probably.
13 Q: All right. You weren't provided with
14 a script to follow in your meetings with the First Nation
15 or with the protesters?
16 A: No, I don't believe I was. I was
17 pretty clear that we wanted the proper protocols to be
18 followed, though, in how we set up the meetings with the
19 Council and the Chief. The MNR civil service side looked
20 after that.
21 Q: But in the message that you were
22 projecting to the Chief and Council and to the
23 protesters, that came from you based on briefings you had
24 from your Ministry staff?
25 A: That's correct.

294

1 Q: You didn't consult Cabinet and you
2 didn't tell the Premier's office you were going out to
3 take care of that issue, did you?
4 A: Not that I'm aware of, no.
5 Q: In fact, you didn't tell Cabinet and
6 you didn't tell the Premier's office, at any point in
7 time, at least before the IMC meeting that took place on
8 September 5th of 1995?
9 A: No. I -- I don't recall -- I thought
10 it was my job and I just did it.
11 Q: If I can turn you, then, to the
12 Serpent Mounds issue that you talked about a little bit
13 in your examination-in-chief.
14 And again, I want to flush it out a little
15 bit, and if I go too far, I'm sure we'll objections.
16 COMMISSIONER SIDNEY LINDEN: That's fine.
17 That's fine.
18
19 CONTINUED BY MR. KEVIN SCULLION:
20 Q: You were referred, in your
21 examination-in-chief, to a review that took place within
22 your Ministry after Ipperwash and after the Serpent
23 Mounds occupation.
24 Do you recall being referred to that
25 summary?

295

1 A: I recall being referred to it. I
2 didn't recall it -- I hadn't seen it before.
3 Q: All right. It was a review that took
4 place, it was done by your staff, in respect of those two
5 (2) incidents. And it refers to a number of facts, which
6 I'll walk you through, but the general conclusion that
7 seems to have been made by MNR was that Serpent Mounds
8 was an issue of civil disobedience.
9 Would you agree with that
10 characterization?
11 A: I'm not familiar with the report,
12 actually. That's -- I would agree with that.
13 Q: All right. And --
14 A: But it might be too strong a word, in
15 my opinion, but...
16 Q: Well, civil disobedience is the
17 deliberate breaking of a law in order to make --
18 A: I take a lawyer's word --
19 Q: -- a point.
20 A: -- for that. Okay.
21 Q: Okay. All right.
22 A: Yeah.
23 Q: So it may have been some legal input,
24 but civil disobedience, as a general term, is appropriate
25 to describe what was occurring at Serpent Mounds?

296

1 A: Okay.
2 Q: Well, it's -- would you agree with
3 that?
4 A: Yes.
5 Q: All right. And we'll get to
6 Ipperwash after I walk through Serpent Mounds with you.
7 But they also put those two (2) together as being
8 examples of civil disobedience.
9 Would you disagree with Ipperwash being
10 also a civil disobedience?
11 A: I'm not an expert on that. I -- I
12 have no opinion, actually.
13 Q: All right. Well, I'll get into how
14 you saw it and your opinion on that in a bit.
15 Serpent Mounds involved a protest by the
16 First Nation of the cancellation of a harvesting
17 agreement, correct?
18 A: That's my understanding, yes.
19 Q: Right. And that's what you were told
20 along --
21 A: Yes.
22 Q: -- the way.
23 A: Yes.
24 Q: And the cancellation was done in
25 August of 1995 by your Ministry?

297

1 A: That's correct.
2 Q: All right. And that was part of the
3 Government platform when you --
4 A: Yes, we campaigned on that, and I
5 described that in earlier testimony.
6 Q: All right. And you didn't consult
7 with any of the First Nations before you cancelled out
8 those agreements? It was simply done as part of your
9 platform?
10 A: No. By the time the advice came in
11 that this is how we were to proceed, I wanted to do it as
12 soon as possible because the hunting season would be
13 coming up and people had to apply for tags and we had to
14 give lots of notice to the hunters and the fishermen.
15 But it was mainly the hunters, because of
16 the Fall season.
17 So I phoned each of the Chiefs,
18 individually, before -- it was done by phone call, rather
19 than a meeting, but it was done by phone call before we
20 made the decision and made the announcement.
21 Q: All right. Are you suggesting that
22 you consulted with them as to whether or not you would
23 terminate the agreement or simply with respect to the
24 timing of the cancellation?
25 A: No, it was just in terms of, you're

298

1 aware that we campaigned on this and here's the timing.
2 It wasn't a negotiations, but I -- I phoned each Chief
3 and informed them ahead of time.
4 Q: Right. It was an information --
5 informational call.
6 A: Yes.
7 Q: You let them know it was being
8 cancelled in accordance with the platform that you --
9 A: That's right.
10 Q: -- ran on.
11 A: Yeah.
12 Q: And you just let them know about
13 timing and, in your opinion, you thought that you were
14 giving them a little bit of extra --
15 A: Yeah, most -- most of them were aware
16 of the campaign platform and the commitment.
17 Q: All right. We won't get into what
18 they were aware of or otherwise. I'm just simply
19 suggesting, and it sounds like you're agreeing with me,
20 that you didn't consult with them before cancelling the
21 agreements?
22 A: No, we didn't negotiate over it, no.
23 Q: And you were warned by the First
24 Nation --
25 A: I might -- just a caveat to that,

299

1 though, I might have gone into the Supreme Court
2 Decision that was guiding our -- our platform and the
3 reasons behind their Decision.
4 Q: All right. So you may have done some
5 legal research into it, but you didn't consult with the
6 First Nations before doing it?
7 A: No.
8 Q: All right. You had warning from the
9 First Nation that if you were going to cancel it, that
10 occupation of the Park was a distinct possibility.
11 A: We may have. I was aware that there
12 may be a protest, yes.
13 Q: Right. I suggest that you were aware
14 of that, and that a contingency plan within MNR was
15 developed for that express purpose.
16 A: Yeah, I can't recall, but -- I can't
17 recall the specifics on that.
18 Q: All right. Well, the contingency
19 plan -- we've heard from other witnesses that the
20 contingency plan was simply the movement, the removal of
21 the assets from the Park, at least the ones that could be
22 moved from the Park, and an evacuation of the Park which
23 addressed the safety of the Park visitors and the
24 campers?
25 A: That's consistent with my

300

1 recollection of what happened.
2 Q: All right. Do you recall the Chief
3 offering to meet with you on the Friday before that
4 occupation was to occur?
5 A: He may have. I can't recall that.
6 Q: All right. And if there's documents
7 to that effect, you're not able to contradict them?
8 A: I wouldn't dispute that, no.
9 Q: All right. Because in your documents
10 from -- from the Commission Counsel --
11 A: I know we were trying to set up a
12 meeting at some point, but I can't recall the specifics.
13 Q: All right. It sounds like we're on
14 the same page. The Chief offered to meet on Friday.
15 Your staff wasn't able to arrange it with you until the
16 Tuesday.
17 Does that ring a bell?
18 A: Yeah, it could, yeah. That's
19 possible.
20 Q: Okay. Would you agree with me that
21 that was a possible opportunity for you to prevent such
22 an occupation from occurring?
23 A: Possibly.
24 Q: All right.
25 A: Yeah.

301

1 Q: Runs a little bit afoul of your
2 general concept that it's better to prevent it than to
3 address resolving it?
4 A: Yeah, I don't recall the specifics
5 but I know there was a reason why we couldn't arrange
6 that, but you know...
7 Q: All right. I'll suggest that the
8 reason why you did that is because you saw it as simply a
9 case of civil disobedience and they were occupying the
10 Park in order to make a point and you could meet with
11 them on the Tuesday?
12 A: I don't recall thinking anything
13 about that actually.
14 Q: We heard from your Deputy Minister
15 Mr. Vrancart that part of the contingency plan, part of
16 what was done was to issue rainchecks for those that
17 would otherwise have been occupying the Park on Labour
18 Day weekend in order to go another -- to another
19 location?
20 A: That's my recollection as well.
21 Q: He said it was your idea and that it
22 turned out to be a pretty good idea because it was met
23 with favourable response.
24 Do you recall that?
25 A: I don't recall the favourable

302

1 response but I recall that it was my idea, yes.
2 Q: All right. I suggest to you that at
3 that point in time your approach was not to prevent such
4 an occupation but it was simply to manage it peacefully?
5 A: No, I don't recall being aware that
6 it was imminent that there was going to be an occupation.
7 I know they phoned to give us advance notice when they
8 were doing it.
9 At that point I didn't recall thinking
10 that there was a way to prevent that. The meeting that
11 we were trying to set up for some reason I couldn't do it
12 but it -- we would have always liked to prevent a
13 situation like that.
14 Q: I accept that it would have been your
15 preference to prevent such a situation but I'm saying
16 once you knew it was going to happen on the Friday your
17 approach moved from prevention to simply managing it
18 peacefully?
19 A: That's correct.
20 Q: All right. The occupation was of
21 Serpent Mounds Provincial Park which I understand from
22 the documents produced by the Commission was 73 percent
23 Crown land and 27 percent reserve land?
24 A: That's my understanding as well
25 except the 27 percent that was reserve land. It was a

303

1 very important part of the Park so I always viewed it as
2 more than just, you know, a quarter. I always thought of
3 it as -- as an significant part of the Park.
4 Q: Right. I'm talking absolute
5 ownership.
6 A: Yes, that's my recollection.
7 Q: All right? The ownership of the
8 reserve was Federal land and the ownership of the Crown
9 land, the other three-quarters was provincial land?
10 A: That's correct.
11 Q: All right. And there was a two
12 thousand (2,000) year old burial ground on one (1) of
13 those two (2) sections, correct?
14 A: That's my understanding, yes.
15 Q: Do you recall which section that was
16 on?
17 A: No, I don't.
18 Q: No one's been able to help me with
19 that so far but perhaps --
20 A: You could go and visit the Park.
21 Q: Our understanding as well is that the
22 Reserve land was leased to the Province in accordance
23 with an interim lease agreement on June 1 for one (1)
24 year.
25 Does that accord with your...?

304

1 A: That accords with my recollection,
2 yes.
3 Q: All right. So on the face of it you
4 have 73 percent Crown land and 27 percent reserve land
5 being leased to the Crown that's about to be occupied,
6 correct?
7 A: Correct.
8 Q: Your Park wasn't closed for the
9 season, it was going to be open on that Labour Day
10 weekend, correct?
11 A: That's correct.
12 Q: And there was potential that a lot of
13 people were going to be seriously inconvenienced because
14 they couldn't be there on the Labour Day weekend and you
15 had to address that from an MNR perspective, correct?
16 A: Yes.
17 Q: All right. You had to evacuate out
18 the ones that were there already and you provided
19 rainchecks to those who may have arrived and had to go
20 somewhere else?
21 A: And the ones who were evacuated.
22 Q: All right. So you gave rainchecks to
23 everybody?
24
25 (BRIEF PAUSE)

305

1
2 Q: On its face it was an illegal
3 occupation of Crown land, correct?
4 A: On the surface, yes.
5 Q: They were illegally occupying your
6 Provincial Park were they not?
7 A: Yes, but we clearly understood the
8 motive behind it, the type of protest. We were given
9 advance notice from the Council and Chief.
10 Q: All right, so motive was important
11 for you.
12 A: Well, we understood it, that's why it
13 was important.
14 Q: It didn't make it legal, though, did
15 it?
16 A: Well, in my mind -- I'm not a legal
17 person, but they owned the land, in my opinion, and if
18 they wanted to reclaim it, we'd have to talk about that
19 and deal with it.
20 Q: All right, just --
21 A: But the title was clear that the
22 First Nation had ownership.
23 Q: Title's clear that the First Nation
24 was entitled to occupy the reserve land owned by the
25 Feds.

306

1 A: Hmm hmm.
2 Q: 27 percent of the Park.
3 A: Yes.
4 Q: 73 of the Park was owned by the Crown
5 and operated as a Provincial Park.
6 A: Right.
7 Q: Are you saying that, in your mind,
8 the entire Park was owned by the First Nation?
9 A: Well that's my recollection, I may be
10 corrected on this. But the visitors' entrance to the
11 park was on that 27 percent, so if you were --
12 practically, if you're going to operate the Park that
13 weekend, you needed to have possession of that portion
14 and that was clearly on title as the First Nations land.
15 Q: It's an important part of the
16 operation of the Park, but you'd agree with me that it
17 doesn't make it the First Nations land?
18 A: That part it does.
19 Q: That 27 percent does.
20 A: Which has all the buildings that the
21 public would use by accessing the Park.
22 Q: All right, I'm not sure. Are you
23 agreeing with me, then, that on its face it's an illegal
24 occupation or are you arguing with me on that point?
25 A: No, I probably -- if you've got

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1 enough lawyers in the room that you're probably right,
2 legally. I'm telling you how I viewed it, that the title
3 of the property was the First Nations, on 27 percent --
4 Q: I --
5 A: -- of the Park, where the visitors
6 had to come through.
7 Q: I appreciate that and what I'm trying
8 to do is understand your approach to the Serpent Mounds
9 occupation.
10 A: Yeah.
11 Q: Which you'll appreciate was very
12 different from the approach taken to the Ipperwash
13 occupation, correct?
14 A: Okay.
15 Q: You accepted that this particular
16 First Nation had a beef of some kind that they were
17 protesting by occupying that Park?
18 A: Well, I knew specifically what they
19 were protesting.
20 Q: Right, but it had nothing to do with
21 the Park, it had to do with the harvesting agreement?
22 A: That's correct.
23 Q: All right. They were occupying the
24 Park in order to make a point to your government that
25 they disagreed with your cancellation of that agreement?

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1 A: Right, as the Supreme Court had
2 decided.
3 Q: But you knew they'd leave at some
4 point, correct?
5 A: Oh yes.
6 Q: You didn't know when.
7 A: I can't be certain on that, but -- so
8 I personally didn't know when.
9 Q: Right, you didn't know if they were
10 going to leave on Saturday, Sunday, Monday or October,
11 November, December.
12 They were going to leave at some point?
13 A: That's correct.
14 Q: That was your view?
15 A: That was my view.
16 Q: As long as you kept it peaceful, they
17 were going to leave at some point, having made their
18 point to the government?
19 A: That's -- well, they -- yes.
20 Q: All right. And in the background,
21 you were talking with Chief and Council, setting up
22 meetings to discuss what their grievance was?
23 A: That's my understanding, yes.
24 Q: All right, and that's the approach
25 you favoured and that's the approach you followed at

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1 Serpent Mounds?
2 A: That's correct.
3 Q: You didn't -- you didn't issue any
4 press releases relating to this illegal occupation of the
5 Parklands, did you?
6 A: No, I did not.
7 Q: All right. You didn't have a script
8 to follow in any way, shape or form in dealing with the
9 First Nation with this proposed occupation of the
10 Provincial Park?
11 A: No, I didn't feel that would be
12 helpful. I -- we felt we had pretty good communication
13 with Council and Chief, understood the issues and we
14 didn't see the need to be issuing press releases other
15 than to those that needed to know in terms of the
16 campers.
17 Q: We'll get to those distinctions
18 between Serpent Mounds and Ipperwash in a second. I'm
19 just looking for your view and the fact is, you didn't
20 issue a press release relating to this occupation?
21 A: That's my understanding, yes.
22
23 (BRIEF PAUSE)
24
25 Q: You didn't know if all of the people

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1 or any of the people that were occupying the Provincial
2 Park were necessarily members of the First Nation that
3 you were talking to.
4 There was potential that there were people
5 from other reserves that would be part of that
6 occupation, correct?
7 A: I never thought of it before.
8 Q: All right. There was a review done
9 by your staff indicates that there was potential for
10 radicals from nearby reserves to come in and complicate
11 the issue.
12 Were you aware of that at the time?
13 A: No, I was not.
14 Q: All right. And, in fact, that wasn't
15 a fear of yours in dealing with this situation.
16 A: No, it wasn't.
17 Q: All right. You didn't refer to the
18 people that were occupying the Park as trespassers, did
19 you?
20 A: No. In my mind it was a recognized
21 First Nation that had recognized title.
22 Q: Right. So being a recognized First
23 Nation, you didn't refer to them as dissidents either?
24 A: No.
25 Q: All right. Or hooligans or rebels,

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1 lawbreakers, terrorists, outsiders? None of those terms
2 were used to describe the people that were occupying
3 Serpent Mounds Provincial Park?
4 A: Absolutely not. I -- I know people
5 in the community and it's a recognized First Nation with
6 a Council and Chief that are -- we've had good relations
7 with over -- I said we, the MNR.
8 Q: Right. An important aspect of this
9 occupation was the fact it was supported by the Chief and
10 Council?
11 A: Yes, it was.
12 Q: I'd suggest another reason why you
13 didn't use any of those terms to describe the people that
14 were in the Park is that to use those terms might have
15 increased the tension or anxiety and possibly prolong
16 what was otherwise a peaceful occupation.
17 Was that part of your thinking?
18 A: That was part of my thinking on
19 issuing any press releases or talking about it in
20 general.
21 Q: And I'm not being critical of how you
22 handled the situation, I'm just looking into why you did
23 certain things and why you didn't do other things for
24 obvious reasons.
25 A: Yeah.

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1 Q: You knew that Chief and Council had
2 no jurisdiction over the Provincial Park lands and they
3 couldn't tell people exactly what to do on those lands,
4 correct?
5 A: That's correct but I also knew they
6 had title.
7 Q: Right. Well, you knew that if you
8 treated them properly, treated them with respect then it
9 was going to be a peaceful situation?
10 A: I assumed that, yes.
11 Q: All right. And that's how you
12 approached this type of matter.
13 A: Yes.
14 Q: That was your preference in dealing
15 with this type of matter?
16 A: Yes.
17 Q: Now, Chief and Council were
18 additionally helpful and being a number of people you
19 could talk to about the issues?
20 A: Exactly.
21 Q: All right. And you could trust the
22 Chief and Council to then disseminate any information
23 from your Ministry to those that may be part of the
24 occupation?
25 A: I assumed that, yes.

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1 Q: You never tried to issue a trespass
2 notice to anybody in the Serpent Mounds Provincial Park?
3 A: Not that I'm aware of, no.
4 Q: You neve contacted the Premier's
5 office or look to an IMC meeting for direction on how to
6 deal with this issue, did you?
7 A: No, I didn't. I didn't know I had
8 to.
9 Q: I'm not saying you had to, I'm simply
10 stating you never called the Premier's office about this
11 possible --
12 A: No, I did not.
13 Q: And you never --
14 A: I felt this was inside the MNR
15 jurisdiction and I'd been dealing with the issue in the
16 community all summer and I continued to do that.
17 Q: All right. You saw it as an MNR
18 issue?
19 A: Yes.
20 Q: Did you also see it as an Aboriginal
21 issue?
22 A: Yes. But it was clear that I was the
23 lead Minister on it.
24 Q: I appreciate that. You made yourself
25 the lead Minister on that, didn't you?

314

1 A: The campaign did actually.
2 Q: Fair enough. You didn't appoint
3 yourself -- I'm sorry, you didn't appoint somebody else
4 to take the lead, you took it yourself?
5 A: That's right.
6 Q: All right. You didn't tell the
7 people that were there to go file a claim if they had a
8 claim to the Park did you? You saw no need to do that?
9 A: I thought they owned the important
10 part of the Park already.
11 Q: And at the Serpent Mounds Provincial
12 Park occupation, the police didn't bring in a helicopter
13 or conduct surveillance of the Park, correct?
14 A: I have no idea what the police did.
15 Q: All right. You have no idea of the
16 operations of the police in respect to the Serpent Mounds
17 Provincial Park?
18 A: No, I do not.
19 Q: And then you didn't direct the police
20 or ask for information from the police on how they were
21 handling the situation?
22 A: No, I did not.
23 Q: You left that up to your MNR staff on
24 the ground and whoever the commander was for the police
25 in terms of dealing with those issues?

315

1 A: That's correct.
2 Q: All right. You took a hands off
3 approach to that particular aspect and let them work out
4 what would work best in that situation?
5 A: Yes, I did.
6 Q: On the premise that it was going to
7 bring -- going to remain a peaceful demonstration?
8 A: That was my assumption, yes.
9 Q: That was your goal wasn't it?
10 A: That was my goal, my assumption...
11 Q: Did you see the occupation of the
12 Park as an acceptable and peaceful way of making their
13 point to the Government?
14 A: I understood their point and I didn't
15 really have a problem with it, to be honest. I felt that
16 the community needed to vent some frustration at what we
17 campaigned on.
18 And it was a recognized Council and Chief
19 that we had a good relationship with and I was sure that,
20 if it was handled properly, we would continue to have a
21 good relationship.
22 Q: You recognized they might not agree
23 with your decision and you allowed them an opportunity to
24 vent?
25 A: I'm sorry?

316

1 Q: You understood or you saw that they
2 didn't agree with your decision and you allowed them an
3 opportunity to vent?
4 A: I'm just speaking personally.
5 Q: I'm looking for your personal views.
6 A: Yes.
7 Q: Correct?
8
9 (BRIEF PAUSE)
10
11 Q: At what point in time did you tell
12 the Premier's office about how you dealt with Serpent
13 Mounds?
14 A: I don't recall ever doing that.
15 Q: They never asked you how you dealt
16 with it and you never told them how you dealt with
17 Serpent Mounds?
18 A: No, it was an MNR issue, I was the
19 Minister, I thought it was my job.
20 Q: All right. This is an occupation
21 that went from the Friday to the Monday of Labour Day
22 weekend, just before the Ipperwash Park was occupied, and
23 you didn't see a need to tell the Premier's office how
24 you dealt with that peacefully?
25 A: Nobody instructed me that I had to.

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1 Q: And without that instruction, you
2 didn't take it upon yourself to advise the Premier's
3 office as to how you dealt with it?
4 A: No, I didn't.
5 Q: May be a good time, Commissioner.
6 COMMISSIONER SIDNEY LINDEN: Be a good
7 time to break?
8 MR. KEVIN SCULLION: Yeah.
9 COMMISSIONER SIDNEY LINDEN: Are you
10 moving on to Ipperwash now?
11 MR. KEVIN SCULLION: I'm moving on to
12 Ipperwash now.
13 COMMISSIONER SIDNEY LINDEN: I think this
14 would be a good time to break.
15 MR. KEVIN SCULLION: Okay.
16 COMMISSIONER SIDNEY LINDEN: That's fine.
17
18 (WITNESS RETIRES)
19
20 THE REGISTRAR: This Inquiry stands
21 adjourned until tomorrow, Wednesday, January the 18th at
22 9:00 a.m.
23
24 --- Upon adjourning at 4:38 p.m.
25